SUBBA SOSAL v. KEVIN ANTHONY BROWNE, THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 152/2019

[2019] HKCA 1237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 152 OF 2019

(ON APPEAL FROM HCAL NO 1051 OF 2018)

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J U D G M E N T

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

1.  This court handed down judgment on 6 August 2019 ([2019] HKCA 845) dismissing the applicant’s appeal against an order of DHCJ K.W. Lung given on 15 March 2019 refusing his application for leave to apply for judicial review concerning his non-refoulement claim. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

2.  The applicant subsequently applied, by a Notice of Motion on 16 August 2019, for leave to appeal to the Court of Final Appeal. On 20 August 2019, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 30 August 2019.  In a letter dated 26 August 2019, the applicant requested for an extension of time for 2 to 3 months to file his submissions as he claimed that he is in the process of applying for legal aid for preparation of his submissions. The applicant’s previous application for legal aid had been rejected by the Director of Legal Aid on or about 27 August 2018.  On 29 August 2019, the Registrar of Civil Appeals ordered that there should be no automatic stay even if there was an application for legal aid.  He further imposed an unless order on the applicant to lodge his written submissions by 4 pm on 13 September 2019.  There was no appeal from the Registrar’s order, nor did the applicant comply with the unless order. 

3.  The Registrar had further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper. 

4.  The applicant stated in his Notice of Motion that:

“-  The claims that the judgment has made stated is no substance in the grounds of the application is not true.

-  On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

-  The applicant gently did not have enough time to address the bundle.  Rest of the grounds I will submit as soon as possible.”

5.  In an affirmation filed on the same date, the applicant complained that the court was wrong to conclude there was no state acquiescence or involvement and had failed to find out details of the current situation “in Nepal”.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

7.  In his Notice of Motion, the applicant complained about the performance of his duty lawyer, but this had not featured in his grounds of appeal before this court.  As for the ground regarding the hearing bundle, we had dealt with this at para. 9.2 in our judgment.  As for the grounds in his affirmation, as noted in para.13.1 of our judgment, state acquiescence had not been material to the TCAB’s decision at all.  And since the applicant is from India, the current situation in Nepal is irrelevant.    

8.  No question of great general or public importance has been identified in the grounds in the Notice of Motion.

9.  Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

10.  In the circumstances, we cannot find any basis for granting leave to appeal to the Court of Final Appeal.

11.  By virtue of the above, the Notice of Motion dated 16 August 2019 is dismissed.