RE RAJ KUMAR KUMHAL

CACV 286/2018

[2019] HKCA 115

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2018

(ON APPEAL FROM HCAL NO. 545 of 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 12 November 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 June 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 3 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission in support of his application. 

3.  Having considered the applicant’s notice of motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

5.  The Notice of Motion stated that the decision maker relied on country of origin information (“COI”), but the actual life situation was different.  It also said that the decision makers and the courts had ignored overwhelming evidence of violence against minorities, and had demonstrated a biased approach that did not take into account the danger to the applicant’s life. 

6.  The written submission set out the applicant’s personal background and the basis of his non-refoulement claim, and stated that the applicant’s life would be in danger if he were refouled to Nepal.  It also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed.

7.  What was stated in the Notice of Motion and the written submission does 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, as required by section 22(1)(b).  The matters advanced by the applicant all relate to the circumstances of his case.  The complaint in the Notice of Appeal about COI had not been raised in the application before the Judge or in the appeal before this Court.  It is not this Court’s practice to allow new grounds to be raised in the application for leave to appeal to the Court of Final Appeal.  Further, the applicant’s arguments are also unarguable.  As we pointed out in [12] of our judgment, the Board had rejected the applicant’s claim that he left his country out of fear of being harmed.     

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

9.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.