RE GURUNG SOYTA

CACV 38/2019

[2019] HKCA 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 38 OF 2019

(ON APPEAL FROM HCAL NO 901 OF 2018)

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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 17 June 2019, this court (Barma JA and Bharwaney J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the judge”) on 15 January 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 her appeal from the decision of the Director of Immigration rejecting her 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 26 June 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

(1)  The judges have erred in determining that the judge had not failed to appreciate the significance of her non-refoulement claim.  The lack of assistance to the applicant was an error of law and procedure, evidence of procedural unfairness and a failure to adhere to a high standard of fairness;

(2)  The judges have not addressed the issues regarding (4) to (8) in her skeleton submission for the appeal before this court;

(3)  The applicant should have been given legal assistance for her claim based on BOR 2 risk;

(4)  It was unreasonable to presume that she had access to language assistance and that she should have been given interpretation service.  She did not understand the decision by the judge and her grounds of appeal in the notice of appeal and notice of motion were formulated with the help of her friend.  Those grounds did not fully reflect her case; and

(5)  The applicant claimed that “if a litigant has not been informed fully of [her] rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place”.

4.  The applicant lodged a written submission in support of the application on 11 July 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  She further submitted that there was a lack of language and legal assistance and that the lack of a hearing for her claim based on BOR 2 risk was unfair.  She asked to have her claim based on BOR 2 risk remitted to the Director for consideration and that she be given legal and language assistance.

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 the Notice of Motion and written submission.

6.  The matters stated by the applicant in the 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 she has raised in the Notice of Motion and written submission.

7.  At [13] – [15] of our judgment, we have already addressed the issue concerning the alleged lack of language and legal assistance (which the applicant advanced in paragraphs 4-8 of her skeleton submission for the appeal before this court).  In our view, this ground is not reasonably arguable before the Court of Final Appeal.

8.  We note that, hitherto, the applicant has not raised any complaint of the lack of a hearing before the Director for her claim based on BOR 2 risk.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2]  nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

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

10.  For these reasons, the Notice of Motion dated 26 June 2019 is dismissed.