RE VIJAY KUMAR

CACV 43/2020

[2020] HKCA 827

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 43 OF 2020

(ON APPEAL FROM HCAL 1616 OF 2018)

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J U D G M E N T

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Hon Wong J (giving the judgment of the court):

1.  This Court (Lam VP and Wong J) gave Judgment on 25 August 2020 dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 23 January 2020 refusing his application for leave to apply for judicial review concerning his non‑refoulement claim.  The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our Judgment and will not be repeated here.

2.  The applicant subsequently applied, by a Notice of Motion dated 1 September 2020, for leave to appeal to the Court of Final Appeal.  On 4 September 2020, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 15 September 2020 and that if there is written submission in opposition by the party / parties who has / have been served with the Notice of Motion, it be filed within 14 days after having been served with the submission.

3.  The applicant filed a written submission on 11 September 2020.  The Torture Claims Appeal Board / Adjudicator of the Non‑Refoulement Claims Petition Office (“the Board”) indicated that it would take a neutral stand and did not file any submission.  The Director of Immigration (“the Director”) did not make a response.

4.  The Registrar had also directed that the Notice of Motion shall be determined on paper only without an oral hearing.  Having perused the papers, we agree it is appropriate to determine this application on paper.

5.  The applicant is not legally represented.  From his Notice of Motion and submission, we endeavour to comprehend the grounds he put forward and summarise them as follows:

(1)  He, the applicant, has problem in his own country and he desires to stay here so that he can solve his problem;

(2)  His own country is still dangerous for him to return, people like him are living under threat due to enemies who are too strong for them;

(3)  He is not satisfied with the decisions as:

(a)  Many things relating to his case had been ignored;

(b)  The decisions were not transparent;

(c)  The situation of his country is different from what the decision makers thought, in particular as:

(i)  the police and other law making authorities are using their political influence and he (the applicant) does not have the strength to fight with them;

(ii)  even if someone wants to be a witness against them often that person may disappear or be killed by unknown persons;

(iii) it is very difficult to get justice because of the corrupt environment; and

(iv) torture and deaths of innocent people are common in police custody.

6.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[1], leave to appeal to the Court of Final Appeal is granted if the question involves in the appeal is of great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

7.  No question of great general or public importance has been identified in the grounds in the Notice of Motion and the subsequent written submission.

8.  We have perused the papers filed by the applicant to see if there is any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

9.  At the appeal, the applicant did not provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  The applicant’s claim for non-refoulement protection was rejected by the Board mainly because of the adverse finding on the credibility of the applicant, which we did not find reversible on any public law grounds.

10.  The overall observation of the Judge was that the applicant’s case is not reasonably arguable and there is no realistic prospect of success in an application for judicial review.  We did not discern any mistake in the decision made by the Judge.

11.  The matters now raised by the applicant are either not canvassed at the appeal or have been considered by us and found to be not meritorious.

12.  In the circumstances, we do not find any basis for granting leave to appeal to the Court of Final Appeal.

13.  By virtue of the above, the Notice of Motion dated 1 September 2020 is dismissed.

[1]  Cap 484, Laws of Hong Kong.