RE SELLAIAH MURUGESAN

CACV 163/2019

[2020] HKCA 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 163 OF 2019

(ON APPEAL FROM HCAL 529/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 24 September 2020, 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 16 August 2019.

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

3.  In his Notice of Motion for leave to appeal to the CFA, the Applicant stated that his life would still be in danger if he were to return to India because there is still a threatening situation there.

4.  The Applicant lodged his written submissions on 6 October 2020.  In those submissions, the Applicant stated that in his appeal to this Court he had not made written submissions due to language difficulty, and that it was unfair that the Judge never heard him in person. 

5.  The Applicant also submitted that it was unfair and prejudicial that he was not provided with language assistance and legal representation in respect of the assessment of BOR 2 risk[1] by the Director of Immigration (“the Director”) after his non-refoulement claim was initially rejected on all other applicable grounds.  The Applicant stated that the decision of the Torture Claims Appeal Board (“the Board”) was not read to him via an interpreter.

6.  In our judgment, the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim or any discernible or arguable ground for disturbing our judgment. 

7.  It is well-established that upon a failure to comply with unless order to lodge skeleton submissions this Court can treat the failure as an abandonment of right to oral hearing: see Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; Re SK Sarfaraj [2018] HKCA 307; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451.

8.  Adequate time was given to the Applicant under the unless order for him to lodge skeleton submissions.  He did not explain for his inability to lodge submissions in the appeal when he can do so in this Motion.   

9.  The arguments in his current submissions were not raised in the Court of First Instance or the substantive appeal in this Court. An application for leave to appeal to the CFA is not the right occasion for new arguments to be canvassed.

10.  Moreover, such arguments do not give rise to valid public law grounds for reversing the Board’s decision.  The Applicant’s arguments regarding lack of legal or language assistance are untenable.  As this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

11.  As regards BOR 2 assessment, the record shows that the Applicant had lodged a 3-page submissions to the Director on 28 March 2017 setting out his claim on BOR 2 (which was based on the same underlying factual materials put forward for other heads of non-refoulement claims). Those matters had been properly considered by the Director in the letter of 30 March 2017 and the Board’s decision of 9 March 2018.

12.  In any event, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

13.  For these reasons, we refuse to grant leave to appeal to the CFA. The Applicant’s Notice of Motion is dismissed accordingly.