Re Sukhdev Singh

CAMP 190/2021

[2021] HKCA 1680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 190 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 963 of 2018)

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Before: Hon Chu and M Poon JJA in Court

Date of Judgment: 15 November 2021

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JUDGMENT

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

1.On 11 October 2021, this Court handed down our judgment[1] refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Bruno Chan given on 7 September 2020 refusing to extend the time for him to apply for judicial review.

2.On 18 October 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. The applicant had also put in a written submission on 1 November 2021 to support his application.

3.Having considered the applicant’s notice of motion and written submission, 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.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if 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.

6.The notice of motion set out the following grounds in support of the application:

(1) The applicant did not agree with the decision on his application for extension of time.

(2) There was no proper consideration of his application. The decision only relied on hearsay matters, which is not fair.

(3) High standard of fairness is required to determine the applicant’s torture claim.

(4) The applicant is liable to be killed by his enemy if he returns to his country.

7.The written submission substantially repeated the written submission previously put in to support the application for extension of time before this Court (see [21] of our judgment). [1] to [6] and [9] to [11] of the written submission dated 1 November 2021 are identical to [3] to [8] and [10] to [12] of the previous written submission lodged on 8 July 2021. Additionally, the written submission asserted that the applicant is at present still under threat in his country and he will face hardship if he returns there. It also claimed that the Awami League is now in power and it had already killed many people; hence the applicant will face a high risk of death if he were refouled.

8.The matters put forward by the applicant in the notice of motion and the written submission do not constitute viable grounds for giving leave to appeal. Importantly, they all relate to the circumstances of the applicant and his claim, and do not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination. The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.

9.Moreover, many of the points made by the applicant are incorrect or have no relevance. For instance, while his torture claim was based on fear from being harmed or killed by someone from the Akali Dal Party, the written submission now claims that the applicant fears harm from the Awami League.

10.Further, the Judge’s decision was to refuse to extend the time for the applicant to make a judicial review application as he was seriously out of time and there are no merits in his appeal against the Board’s decision. As for the Board’s decision, it concerns the applicant’s appeal against the Director’s refusal to allow him to re-open his claim after he had withdrawn it on his own accord. For reasons we gave in [23] to [25] of our judgment, the arguments put forward in the written submission are misplaced and do not engage the reasons given by the Director and the Board in holding that the applicant’s application to re-open his claim did not meet the requirements of section 37ZE(2) of the Immigration Ordinance, Cap. 115.

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

12.As the statutory requirements for granting leave to appeal to the Court of Final Appeal are not met, we refuse the application and dismiss the notice of motion.

The applicant, unrepresented, acted in person.