RE RAI NAKSHAL KUMAR

CACV 212/2019

[2020] HKCA 87

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2019

(ON APPEAL FROM HCAL NO 1036 OF 2017)

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J U D G M E N T

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Hon Bharwaney J (giving the Judgment of the Court):

1.  On 25 September 2019, this court (Barma JA, Bharwaney J and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 30 April 2019 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 8 October 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“… my life is still in danger, my home county, I was returned to Nepal. I would like to inform the [court] that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claims. Actual life occur different situation then what is mentioned in COI Information. The officer and courts perfect to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable.” (sic)

4.  The applicant then went on to identify the errors allegedly committed by the Board and the Director and repeated the grounds for judicial review.  He contended that the Court of First Instance “failed to discharge its duty to Comprehensively consider the lawfulness or fairness of decision-making, as is its’ role in judicial review” (sic).

5.  The applicant lodged a written submission in support of the application on 21 October 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He also advanced a number of arguments as to why the Board should not have dismissed his appeal.

6.  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 the documents filed.

7.  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.

8.  Although the applicant has made lengthy submission on the correctness of the Board’s Decision, as we have held in [16] of our judgment, this court focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take into account of relevant matters or was plainly wrong.  The applicant failed to identify any of the above errors.

9.  Further, as we have held in [19] of our judgment, we would not consider those grounds which were not previously raised as a ground for judicial review.

10.  Additionally, none of the grounds raised by the applicant was directed towards our judgment and they are therefore not viable grounds of appeal.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

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

12.  For these reasons, the notice of motion dated 8 October 2019 is dismissed.