KHANAL HARI v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 1 /2019

[2019] HKCA 1335

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2019

(ON APPEAL FROM HCAL NO 579 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  By a judgment dated 17 May 2019 ([2019] HKCA 549) (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 19 December 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board dismissing the applicant’s appeal against the decision of the Director of Immigration rejecting the applicant’s non‑refoulement claim.

Background

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. 

3.  By a Notice of Motion dated 4 June 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“1. The Judges have not considered my grounds of appeal thoroughly.

2. My ground of appeal was that the Deputy Judge has erred in claiming that I could find someone to assist me with interpretation / translation and dealing with English document ‘at all material times’.

3. This was definitely not the case. To begin with, the Determination of Appeal/Petition by the Torture Claims Appeal Board was never translated or read back to me. The fairness of a non-refoulement claim should not be limited to just the process of determination, but should rather extend to the Determination itself. It is the basic right of a litigant to understand what was decided against him so that he can make a full review later on. To deprive of the litigant of such right will equal to a deprivation of the right to seek further avenues of appeal or review.

4. As the Judges have put in [14], ‘the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant’.  However an applicant cannot be expected to provide full grounds if the applicant was not first given the reasonable opportunity to understand the judgment subject to review.  Such procedural impropriety should not be tolerated and should be addressed properly.”

5.  On 11 June 2019, Master Au-Yeung directed the applicant to lodge with the court his written submission on or before 18 June 2019.  The applicant lodged his written submission on 19 June 2019. 

6.  In his written submission, the applicant repeated what he set out in the Notice of Motion.

7.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.  

Discussion

8.  The applicant’s complaint of lack of language assistance has been dealt with by the Deputy Judge in his decision and also by this Court in the Judgment.

9.  Regarding the grounds on no translation of the determination of the Board and the judgment of the Deputy Judge, these were not grounds relied on by the applicant in his application before the Deputy Judge nor in the appeal before this Court.

10.  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.

11.  None of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds. 

12.  In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Judgment.  None of the matters raised by the applicant in the Notice of Motion involves any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we find any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

The Deputy Judge’s Decision

13.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.