RE GHOUS NIAZ

CACV 72/2019

[2019] HKCA 1412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 72 OF 2019

(ON APPEAL FROM HCAL NO 810 OF 2018)

___________________________

___________________________

________________

J U D G M E N T

________________

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 Josiah Lam (“the judge”) on 1 February 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 decision 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 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 erred in determining that the judge had not failed to appreciate the significance of his claim.  The lack of assistance is an error of law or procedure, evidence of procedural unfairness or failure to adhere to a high standard of fairness;

(2)  The judges have not addressed the issues regarding (4) to (7) in his skeleton submission for the appeal before this court;

(3)  There was a “lack of evidential consideration of issues raised in Court”;

(4)  The judge was wrong to conclude that the applicant had access to language assistance. Interpretation service should have been made available to him;

(5)  The judges should have more understanding of a self-represented claimant and not dismiss his appeal for lack of draft ground of appeal;

(6)  The applicant claimed that “if a litigant has not been informed fully of his 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 10 July 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He also submitted that there was a lack of language and legal assistance and that the lack of a hearing for his claim based on BOR 2 risk was unfair.  He asked to have his claim based on BOR 2 risk remitted to the Director for consideration and that he 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 he 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 assistance (which the applicant advanced in paragraphs 4-7 of his skeleton submission for the appeal before this court).  As for the ground based on the lack of “evidential consideration of issues raised in court”, this ground is vague and lacked particulars.  In our view, these grounds are 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 his 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.