Re Nirmal Singh

CACV 578/2021

[2022] HKCA 1701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 578 OF 2021

(ON APPEAL FROM HCAL NO 1553 OF 2018)

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Before:  Hon Au and Chow JJA in Court

Date of Judgment:  17 November 2022

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J U D G M E N T

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

1.On 13 September 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 1 September 2022 (“the Judgment”)  ([2022] HKCA 1280). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 15 December 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 3696).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.In his Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM. I WAS NOT SATISFAID SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

5.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 27 September 2022.  In those submissions, he merely repeated the factual basis and procedural history of his non-refoulement claim.  He contends that his life would be under threat in his home country and that he could be killed by his enemy, and further asserted that the law and order situation in his country is very bad.  He then claimed that all asylum seekers are facing the same problem and for the great interest of all asylum seekers he wanted to bring his appeal to the Court of Final Appeal.

6.In our view, his intended appeal is clearly without substance.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  He also failed to condescend upon particulars or provide any evidence in support as to how “all asylum seekers are facing the same problem”.  More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, the applicant’s intended appeal plainly has no merit.

7.Further, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

8.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

9.For the above reasons, the Notice of Motion filed on 13 September 2022 is dismissed.

The applicant acting in person