RE JIM BAHADAUR GARBUJA AND ANOTHER

CACV 624/2020

[2021] HKCA 2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 624 OF 2020

(ON APPEAL FROM HCAL 2001 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”)  against this court’s judgment dated 17 September 2021[1] (“Judgment”), dismissing the applicants’ appeal from the decision made by Deputy High Court Judge Bruno Chan on 21 September 2020[2] (“Judge’s Decision”)  refusing them leave to apply for judicial review of the decision dated 14 January 2019 (“Board’s Decision”)  of the Torture Claims Appeal Board concerning their non-refoulement claims.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b)  of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”)  or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In seeking leave to appeal to the CFA, by the notice of motion filed on 29 September 2021 and written submission lodged on 11 October 2021, the applicants essentially reiterated the grounds of appeal and earlier written submission summarised in [14(1)] and [14(2)] of the Judgment (though it has now been clarified that the applicants relied on the matters complained in Ground 2 as evidence of the alleged procedural unfairness and lack of caution and diligence in the handling of their case under Ground 1).

5.  In short, they contended that the lack of legal and language assistance, including the failure to provide them with translations of the Board’s Decision, the Judge’s Decision and the Judgment, was an error of law and/or procedure and/or amounted to procedural unfairness and/or a failure to adhere to a high standard of fairness and/or discrimination against non-refoulement claimants.

Discussion

6.  In our view, the applicants have not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise. 

7.  Nor do we see any scope to grant leave under the “or otherwise” limb. 

8.  We have already dealt with the applicants’ grounds of appeal premised upon the lack of legal and language assistance in [19] to [21] of the Judgment.  Nonetheless, the applicants see fit to simply repeat the criticisms, without engaging our reasons.

9.  As neither of the statutory criteria under s 22(1)(b)  for leave to appeal to the CFA is met, we dismiss the notice of motion.