RE GHARTI CHITRA BAHADUR

CACV 133/2018

[2018] HKCA 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 133 OF 2018

(ON APPEAL FROM HCAL 834/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.  By our judgment dated 30 July 2018 ([2018] HKCA 452 – Cheung CJHC and Chu JA), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 27 April 2018 ([2018] HKCFI 866) refusing leave to apply for judicial review. The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  In his notice of motion dated 6 August 2018, the applicant gave these grounds in support of his application for leave to appeal:

“1. Regarding the BOR 2 ground which was assessed by the Director of Immigration without referring the case to the Duty Lawyer Service, the high standard of fairness was laid down in the judgments in 2004 and 2009, both of which are very out‑dated. These judgments were given out during a time where the Unified Screening Mechanism was not even implemented. It was used at a stage where there was only torture risk assessed. My case involves a two‑step decision process in which there were further grounds considered.

2. Should the judges not be able to ‘see any additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, the torture risk and the persecution risk’, then it will be contradictory in the sense that the Immigration Department actually did assess the case separately and asked to submit additional information. Should the observation of the Judges be true, technically there would have been no need for the Immigration Department to ask for further information.

3. There was no assistance provided to me in understanding the judgment which was in English, not my first language. The comment that since all court documents were written in English was an indication that either I am familiar with the English language, or that I have access to, or am able to seek, such language assistance as and when I need it is merely an assumption and it does not imply that I have had help from my friends since the beginning when the Duty Lawyer Service stopped representing me. Being able to get help does not indicate that one should be deprived of getting official help.

4  I therefore seek a reconsideration of my case because I do not think that my case has been determined fairly.  I also request that a hearing to be arranged.”

3.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is dealt with on paper without an oral hearing.

4.  It is plain that the grounds in the notice of motion only concern case‑specific matters, but involve no issues of great general or public importance – the statutory criterion for granting leave to appeal to the Court of Final Appeal: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

5.  For the reasons we gave in our judgment, we do not consider the grounds in the notice of motion to be reasonably arguable either.

6.  We also note that like all other documents the applicant filed with the court before, the notice of motion is written in English

7.  There is no basis to grant leave on the “or otherwise” limb.

8.  For these reasons, we dismiss the application for leave to appeal to the Court of Final Appeal.