Re Sarabjit Singh

CACV 549/2020

[2021] HKCA 1884

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2020

(ON APPEAL FROM HCAL NO 1724 OF 2018)

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  13 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.On 17 August 2021, the Applicant failed to attend the hearing of his appeal against an order of DHCJ KW Lung (“the Judge”) given on 12 May 2021 in which he refused to grant an extension of time for the applicant’s application for leave to apply for judicial review in respect of his non‑refoulement claim and dismissed his leave application (“the Judge’s Decision”). As the Applicant had failed to attend the hearing of his appeal on 17 August 2021, and as in any event, no merits were shown on the papers, this court (Yuen and Chow JJA) gave judgment on the same day ([2021] HKCA 1232) dismissing the applicant’s appeal.

2.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 31 August 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 Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reasons justifying the decision.

(2)  The Judges were wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision refusing his application for leave for to apply for judicial review.

(3)  The Judges failed to apply the law properly.  

4.The applicant did not apply to set aside this court’s order or to explain why he had failed to attend the hearing of his appeal.  On 31 August 2021 the Registrar of Civil Appeals gave directions for the applicant to lodge his written submissions on or before 14 September 2021.  He did not do so until 28 September 2021.  No explanation was given for his delay. 

5.In his written submissions, he claimed the decision disposed of his torture claim and made him liable to be removed, which entailed significant implications for his substantial right not to be subjected to torture and his right to non-refoulement protection.  He quoted cases contending that high standards of fairness are required in 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 or elaborate on 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’s grounds of intended appeal as set out in the Notice of Motion and his written submissions were vague and general only.  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 31 August 2021 is dismissed.

The applicant acting in person