Re Munish Kumar

CACV 123/2021

[2021] HKCA 1876

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 123 OF 2021

(ON APPEAL FROM HCAL NO 862 OF 2018)

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions: 17 September 2021

Date of Judgment: 15 December 2021

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JUDGMENT

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

1.This court (Yuen and Chow JJA) handed down judgment on 24 August 2021 ([2021] HKCA 1231) dismissing the applicant’s appeal against an order of DHCJ Bruno Chan (“the Judge”) given on 19 March 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.On 24 March 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 24 August 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.On 6 September 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

2. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favour on rejecting my claim.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

4.Pursuant to the directions made by the Registrar of Civil Appeals made on 6 September 2021 and Practice Direction 2.1, the applicant should lodge his written submissions on or before 17 September 2021.  He did not do so until 20 September 2021.

5.In his written submissions, he claimed the decision disposed of his torture claim and made him liable to be removed entailing significant implications for his substantial right not to be subject to torture and his right to non-refoulement protection.  He quoted some cases contending that high standards of fairness applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is concerned with the late filing of notice of appeal to the Board. However, he did not explain how the aforesaid cases and legal provisions were relevant to his case.

6.The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceed to determine this application on paper. 

7.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

8.The applicant failed to identify any error of law or raise any discernible ground to reverse our judgment.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.    

9.Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

10.By reason of the above, the Notice of Motion filed on 6 September 2021 is dismissed.

The applicant acting in person