RE AMANPREET SINGH

CACV 569/2021

[2022] HKCA 1692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 569 OF 2021

(ON APPEAL FROM HCAL NO. 1359 OF 2021)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1.  On 11 May 2022 this Court (Cheung JA and Cheng J) handed down our judgment ([2022] HKCA 652]) dismissing the applicant’s application to appeal against the decision of Deputy High Court Judge KW Lung given on 7 December 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim (‘Judgment’).

2.  On 10 June 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  The applicant lodged his written submissions on 24 June 2022.

3.  Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The application for leave to appeal is only two days out of time.  We do not consider that this is fatal to the application.  In any event, the more important consideration in deciding whether to extend time is the prospect of the applicant’s intended application for leave to appeal to the Court of Final Appeal.

7.  As to the merit of the intended appeal, section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

8.  The notice of motion states :

‘ With due respect and humble submissions, I beg to you that I don’t accept the decision of the Court, because I am not agree with the decision of the Court. The decision made be unhappy and disappointed about my life security. The decision maker relied on simply and this decision is unfair. If I return back to my home country I will be killed by my enemy. My enemy is still looking for me but this decision make me liable to remove from Hong Kong to risk state, in my home country. The Torture Claims Appeal Board and Direction of Immigration did not scrutinize my claim properly in my home country. ’

9.  The written submissions are nearly identical to those submitted at the appeal, save that the applicant additionally contends that the adjudicator was irrational in his assessment of the evidence – without pointing to any specific error in the weighing of the evidence.

10.  Having considered the notice of motion and submissions, we are of the view that the grounds put forward by the applicant do not constitute viable grounds for giving leave to appeal.  They failed to show that the Court of Appeal was wrong in dismissing their appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for the ‘or otherwise’ limb under section 22(1)(b).

12.  In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the notice of motion.