RE LIMBU RAJ KUMAR

CACV 426/2018

[2019] HKCA 120

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 426 OF 2018

(ON APPEAL FROM HCAL NO. 679 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 December 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 13 August 2018 refusing him leave to apply for judicial review.  

2.  On 20 December 2018, the applicant filed a Notice of Motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has not lodged any written submission despite the directions given by the Registrar of Civil Appeals. 

3.  Having considered the applicant’s notice of motion and affirmation, 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.  Although the Notice of Motion did not contain any proposed grounds of appeal, the affirmation contained two grounds said to be points of law of great and general public importance:

(1)  Whether lack of legal representation is a reasonably arguable basis to challenge the fairness of the process.

(2)  Whether there ought to be an additional basis for challenging a case on BOR 2 risk separate from the BOR 3 risk, torture risk and prosecution risk.

6.  We are of the view that the two grounds are not proper grounds to be submitted to the Court of Final Appeal for determination.

7.  In respect of the first ground, it does not arise from the decision of the Judge or the judgment of this court. Lack of legal representation is not a ground for the application for judicial review before the Judge.  Nor is it a ground of appeal to this Court. 

8.  The second ground also does not arise from the Judge’s decision and our judgment.  It is also not clear what this ground is seeking to argue.  In this case, the applicant’s claim was initially assessed and rejected by the Director on the torture risk, BOR 3 risk and persecution risk grounds.  He appealed the decision to the Board and failed. Later on, the Director re-assessed his claim with regard to the BOR 2 risk ground, having regard to the additional representation made by the applicant in addition to the information he had initially provided.  The Director found no case was made out under the BOR 2 risk ground, and the applicant’s appeal against this determination was dismissed by the Board.  The applicant’s claim had therefore been assessed with regard to all the applicable grounds and he had been afforded an opportunity to provide additional information and representation on the BOR 2 risk ground.  Before the Judge, the applicant only complained that the Director and the Board refused his claim too quickly.  In the appeal before us, there was no argument on the BOR 2 risk assessment.    

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

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