Ram Chander v. Director of Immigration

CACV 12/2018

[2018] HKCA 933

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 12 OF 2018

(ON APPEAL FROM HCAL 305/2017)

_______________________________

_______________________________

Before:  Hon Lam VP, Barma and Poon JJA in Court

Dates of Written Submissions:  24 September 2018 and 8 October 2018

Date of Judgment:  10 December 2018

________________

J U D G M E N T

________________

Hon Lam VP (giving the Judgment of the Court):

1.On 4 September 2018, this Court (Cheung CJHC as he then was and Lam VP) handed down a judgment ([2018] HKCA 585) dismissing the applicant’s appeal.

2.By a notice of motion dated 10 September the applicant seeks leave to appeal to the Court of Final Appeal. 

3.In the notice of motion, the applicant set out the following grounds:

(a) The Affirmations of Chan Cheong Yung and Cheung Ho Chi should not be taken into account as they say nothing that was specific to the applicant’s case;

(b) The Court should only focus on whether the authorities had processed the applicant’s claim in a fair manner regardless of the outcome; and

(c) The high standards of fairness required the decision makers to assess the credibility of the applicant before the determination of his claim.

4.The applicant lodged his written submissions on 24 September 2018.  In substance, the applicant reiterated the grounds of appeal in his submissions.

5.On 8 October 2018, the Director of Immigration also lodged a written submission in opposition.

6.Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

7.In our view, the grounds advanced by the applicant in this application are misplaced.  The evidence of the Director was lodged at the direction of the Court to address the issue if the application for re-opening a non-refoulement claim in administrative regime was subject to the same constraints for re-opening a torture claim set out in the statute.  For reasons given in our judgment, we found that the same constraint applied.  The applicant did not have reasonably arguable basis to challenge this finding.

8.None of the questions raised by the applicant in the notice of motion or in his written submissions involve an arguable point or a question of great general or public importance. The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met. 

9.Furthermore, as the Court refused to grant leave for the applicant to appeal against the judge’s decision refusing him to bring a judicial review application out of time, such decision is final and not amenable to further appeal to the Court of Final Appeal: see Section 14AB of the High Court Ordinance (Cap 4) and Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2007) 20 HKCFAR 240.

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

The applicant acting in person

Ms Patricia Lam, Government Counsel, of the Department of Justice, for the interested party