Re Jaswinder Singh

CACV 217/2018

[2022] HKCA 1287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 217 OF 2018

(ON APPEAL FROM HCAL 505 OF 2017)

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Before:  Hon Yuen JA and Barma JA in Court

Date of Judgment: 9 September 2022

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J U D G M E N T

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

1.On 21 September 2018, this court (Yuen JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 7 June 2018 refusing leave to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion filed out of time on 3 December 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion, inter alia,that this court was “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”.

4.In his supporting affirmation filed on 3 December 2021, the applicant stated that he was “unaware of the rules regarding the 14-days time limit” and that he “had no money to retain a private lawyer”.

5.In his written submissions lodged on 10 December 2021, the applicant merely referred to the well-established principles in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514.

6.Having considered the applicant’s Notice of Motion and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.The applicant failed to explain how and when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the very substantial delay.

8.The applicant has also failed to explain or provide particulars or basis as to how this court was “wrong as a matter of law for not having applied the principle of irrationality” in the consideration of his appeal.

9.Further, there was no attempt by the applicant to elaborate on whether and, if so, how the trite principles referred to in his written submissions had not been applied in the consideration of his appeal by this court or in processing of his non-refoulement claim.

10.We are of the view that the matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

11.Neither the Notice of Motion, the affirmation nor the written submissions contain any particulars as to the alleged error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

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

13.For these reasons, the Notice of Motion filed on 3 December 2021 is dismissed.

The applicant acting in person