Re Rajender Kumar

CACV 297/2020

[2021] HKCA 1961

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2020

(ON APPEAL FROM HCAL 2391/2018)

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Before: Hon Barma JA and Lisa Wong J in Court

Date of Judgment: 23 December 2021

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is a notice of motion filed on 9 June 2021, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 21 May 2021 ([2021] HKCA 721) (“Judgment”), dismissing the applicant’s appeal from a decision dated 16 July 2020 ([2020] HKCFI 1572) by Deputy High Court Judge K W Lung, refusing him leave to apply for judicial review of the decision dated 31 August 2018 of the Torture Claims Appeal Board concerning his non-refoulement claim.

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.In seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to inform to Court of Final Appeal. There are some law error in my decision maker. I am totally disagree with the decision made by authorities and the Director of Immigration. They were totally relied on the COI information and web information and news which is different then to the ground situation because this is towards to my life my life still in danger in my home land in India. So I do not wish to go back to my country.”

5.On 21 June 2021, the applicant filed written submission, the material parts of which contended as follows (sic):

“2. I am disagree with the decision made by the DIRECTOR of Immigration as well as the TORTURE claim appeal board, I do not think my case has been determined FAIRLLY.

3. I urge the authorities to take into account the Real PROCEDURAL unfair throughout the case and to Put Public Policies of trying to dispose of Non-Refoulement claim as quickly as possible aside.

4. Other than the Procedural unfairness, I also disagree with the observations made by the DIRECTOR of Immigration and the Adjudicator of the TORTURE claim appeal board. This is because I do not believe the authorities have carefully and thoroughly assessed my case. It is untrue that there is State Protection available in India. The FACT that I have attempted to make Police REPORTS but in vain is clear indication that SERIOUSNESS of CORRUPTION Remains sever in India and the authorities are ineffective.

5. The Respondent is in bRecach of Procedural Fairness in the following Parts:

(A) The Respondent had unlawfully Fettered his discretion by Refusing my appeal on the ground that they did not satisfy the Requirement.

(B) The Adjudicator acted in a ProceduaRally unfair manner in dealing with my appeal;

(C) The Respondent’s decision to Refuse my appeal were unReasonable OR iRRational in the Public Law Sense OR a Result of Procedural ERRORS OR unfairness.”

Discussion

6.The applicant has not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.Nor do we see any scope to grant leave under the “or otherwise” limb.

8.First, the assertion in the notice of motion and paragraphs 2 and 5 of the written submission are too vague and lacking in particulars to merit any or any serious consideration. 

9.Second, we have already dealt with the accusation repeated in paragraph 3 of the written submission in [20] of the Judgment.  Neither the notice of motion nor the applicant’s written submission really engaged the reasons we gave there.

10.Third, with regard to paragraph 4 of the written submission, the applicant has not previously complained about the finding of availability of reasonable state protection at all.

11.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person