Case Document

100%Judiciary

CACV 450/2018

[2019] HKCA 389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 450 OF 2018

(ON APPEAL FROM HCAL NO. 166 of 2018)

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Re

BALKAR SINGH

Applicant

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Before:

Hon Chu, Au JJA and Andrew Chan J in Court

Date of Judgment:

4 April 2019

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

1.On 28 January 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 3 September 2018 refusing him leave to apply for judicial review.

2.By a Notice of Motion dated 11 February 2019, the applicant applied for leave to appeal from our judgment to the Court of Final Appeal. The applicant had also lodged a written submission on 26 February 2019 in support of his application.

3.Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determining application for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the present application on the basis of the applicant’s Notice of Motion and his written submission.

4.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (the “Ordinance”), leave to appeal to the Court of Final Appeal may be granted if the appeal involves a question(s) which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.The Notice of Motion stated:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and court prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

6.In his written submission, the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required. He also referred to authorities on the principle of Wednesbury unreasonableness and contended that the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) had acted in a procedurally unfair manner. He further referred to section 37ZT of the Immigration Ordinance, Cap. 115 and argued that, in cases of late filing of notice of appeal, the Board may only take into account (a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence; and (b) any other relevant matters of fact within the Board’s knowledge.

7.None of the matters stated in the Notice of Motion or the written submission can in any way constitute a valid ground for granting leave to appeal to the Court of Final Appeal. Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b) of the Ordinance. Secondly, for the reasons given in [10] to [12] of our judgment, the mere repetitions of his claim and the vague assertions that he would be in danger if he were to return to his country, as well as his complaints about the Board’s assessment of the country of origin information are wholly misplaced.

8.There is also no basis for granting leave on the “otherwise” limb under section 22(1)(b) of the Ordinance.

9.For the above reasons, the statutory requirements for granting leave to appeal are not met. Accordingly, we dismiss the Notice of Motion.