Re Karamjit Singh

CACV 78/2018

[2018] HKCA 661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 78 OF 2018

(ON APPEAL FROM HCAL 594/2017)

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JUDGMENT

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Hon Barma JA (giving the Judgment of the Court):

1.On 2 August 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 16 March 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from a decision of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.The applicant subsequently applied, by a notice of motion dated 9 August 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that he had been deprived of the opportunity to establish his claim. His claim “did not actually get re-heard by the [Board], and therefore [his] case should be referred back to the Appeal stage.”

4.In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 23 August 2018.  In his written submission, the applicant submitted that:

(1)   he was not given a chance for an oral hearing before the Board;

(2)   he was not aware of his obligation to notify the Director of his most up-to-date address. Therefore, he did not receive the Further Decision;

(3)   he was unaware of the fact that he would not receive legal representation from the Duty Lawyer Service in relation to his claim based on BOR2 risk; and

(4)   the Board failed to rehear his case.  His case should be remitted back to the Board for a hearing.

5.Having considered the applicant’s notice of motion and written submission, we can find no reason for us to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.The matters stated by the applicant in his notice of motion do not constitute valid grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission.  

7.While this court observed that the Board should have regard to the merits of the applicant’s case based on BOR2 risk instead of simply dismissing the application for lateness, this court had also held that the intended application for judicial review was without merit ([14]-[15] of the judgment dated 2 August 2018).  This court had already concluded at [19] that there was no additional basis for advancing a claim under the BOR2 risk other than that already relied upon in respect of the BOR 3 risk, the persecution risk, and the torture risk.  Further at [20], the court concluded there was no error of law or procedure in the proceedings before the Director and the Board.  In the circumstances, we do not consider that referring the applicant’s case back to the Board would be appropriate. 

8.In our view, this complaint is plainly not reasonably arguable before the Court of Final Appeal.

9.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.For these reasons, the notice of motion dated 9 August 2018 is dismissed.

The applicant appeared in person