SHERPA NIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 523/2022, [2024] HKCA 125

On appeal from [2022] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 523 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1060 OF 2019)

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J U D G M E N T

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

1.  This is the applicant’s notice of motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 June 2023 ([2023] HKCA 712). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 9 August 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the applicant shall lodge written submissions on or before 26 June 2023. It was further directed that the notice of motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant did not lodge any written submissions by the prescribed deadline. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Nepal. He entered Hong Kong on 9 December 2014 as a visitor and subsequently overstayed. He surrendered to the Immigration Department on 10 July 2015. On 16 November 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his job agent who was a member of the Maoist Group.

4.  The applicant stated his grounds of appeal in the notice of motion filed on 12 June 2023 which may be summarised as follows:

(1)  The decision maker did not consider his application properly.

(2)  The Director of the Immigration and the Torture Claims Appeal Board did not scrutinize his claim properly.

(3)  He has severe problem in his home country. If he returns to his home country, his enemy will kill him.

Analysis and disposition

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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 Court of Final Appeal for decision.

6.  The applicant’s grounds are just bare assertion without any support. The Court of Appeal has provided detailed explanation for the dismissal of his application. He has not identified any mistakes in the judgment of the Court of Appeal nor has he raised any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

7.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 12 June 2023.