RE BITTU SINGH

CAMP 42/2021

[2022] HKCA 1793

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 42 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 201 OF 2017)

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____________________

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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 1 December 2021, this court (Chu JA (as she then was) and Barma JA) handed down a judgment dismissing the applicant’s intended appeal from the judgment of DHCJ Bruno Chan dated 20 March 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal against the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, 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 13 April 2022, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant stated that he disagreed with the judgment of this Court, contending that the judgment was “not fair”, as well as reiterating the alleged dangers he would face should he be refouled.

4.  In the affirmation filed on 13 April 2022, the applicant deposed:

“… Notice of Motion is out of time … I did not get any letter from the court about the Judgment … the Immigration officer informed me and I intend to apply for Notice of Motion because I have severe problem in my home country.”

5.  In breach of the directions by the Registrar of Civil Appeals, the applicant failed to lodge any written submissions with the court.  He is thus deemed to have abandoned his right to rely on written submissions.

6.  Having considered the applicant’s Notice of Motion and affirmation, 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 state the date on which he was informed by the Immigration Officer of the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.

8.  In any event, the matters advanced 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.

9.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion filed on 13 April 2022 is dismissed.

CAMP 42/2021

[2021] HKCA 1772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 42 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 201/2017)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  On 20 March 2018, DHCJ Bruno Chan refused leave to the applicant to apply for judicial review (HCAL201/2017; [2018] HKCFI 622). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 7 April 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“Director”) dated 24 June 2016 and 26 January 2017 rejecting the applicant’s non-refoulement claim.

2.  The applicant was late in bringing his intended appeal.  His application for extension of time to appeal was dismissed by the judge on 26 March 2019 ([2019] HKCFI 419) and his renewed application to this court was dismissed by this court on 8 December 2020 (CAMP 87/2019; [2020] HKCA 997).

3.  On 5 February 2021, the applicant took out a summons in CAMP 42/2021 purportedly for an intended appeal from the judgment in HCAL 201/2017.  The summons stated that:

“The High Court judge judgment is not reliable. He could not show any good cause to refused my leave, he only copy adjudicator decision. He should give his own judgment”

4.  In the affirmation filed on the same day, the applicant deposed that:

“Affirmation for extension of time to appeal against the decision of the High Court judge. Because my time to apply was over and I want to challenge the judge judgment.”

5.  On 23 March 2021, the Registrar of Civil Appeals directed (among other things) that:

“…

4. As the Court of Appeal has already dismissed the Applicant’s summons for extension of time to appeal against the Decision on 8 December 2020 in CAMP87/2019, the Summons seeks to re-litigate the same matter and is liable to be struck out as an abuse of process.

5. If the Applicant does not agree, he may on or before 7 April 2021 lodge his written submissions stating why the Summons should not be struck out...”

6.  The applicant did not lodge the written submission as directed.  Like the Registrar, we are of the view that this application is clearly an abuse of process, as it seeks to re-litigate the same matter as in CAMP 87/2019.

7.  The summons of 5 February 2021 is dismissed accordingly.