RE SHERPA PEMBA

CACV 76 /2018

[2019] HKCA 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 76 OF 2018

(ON APPEAL FROM HCAL NO 376/2017)

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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 28 September 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 23 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 (“the Board”) dismissing his appeal from the decisions 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 dated 18 October 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1.  I was not aware I had to lodge skeleton submissions. I asked a friend to help me with the application because I cannot understand English but the friend did not tell me there is such a requirement needed, nor was there any translation or help I have obtained from the Court in the proceeding to better assist me.

2.  There should be room for a judicial review of both the Director and the TCAB’s decision.

3.  The Deputy Judge failed to communicate when she said the affirmation did not list grounds succinctly and instead chose to depose of my case in an ‘efficient’ and ‘swift’ manner.

4.  Deputy Judge merely made assumptions and sided with the Board.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 30 October 2018.  In his written submission, the applicant reiterated the matters raised in the Notice of Motion.  He added that the court should have given him an oral hearing.

5.  Having considered the applicant’s notice of motion and written submission, 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 his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion and written submission 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 in his notice of motion and his written submission.  We have already given reasons for vacating the appeal hearing at [13] of our judgment.  The need to file skeleton submissions (failing which the appeal hearing would be vacated) had been communicated to him by a letter dated 13 July 2018.  The applicant claimed that he did not understand English and his friend did not inform him of this requirement.  This is not a good excuse, and the applicant failed to show prejudice stemming from the absence of an appeal hearing as he has not suggested what he would have been able to put forward at such a hearing.  As for the remaining grounds for seeking leave, they are only concerned with the alleged error by the judge but not directed towards our judgment.  They are thus not viable grounds for seeking leave to appeal to the Court of Final Appeal.

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

8.  For these reasons, the notice of motion dated 18 October 2018 is dismissed.