RAJ NARAYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

CACV 153/2019

[2019] HKCA 1247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 153 OF 2019

(ON APPEAL FROM HCAL NO 679 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 12 August 2019 ([2019] HKCA 889) dismissing the applicant’s appeal against an order of DHCJ Woodcock (“the Judge”) given on 21 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 10 September 2019, for leave to appeal to the Court of Final Appeal.  Written submissions were filed on 10 October 2019 after an unless order had been imposed by the Registrar of Civil Appeals.     

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 India.

6.  On 10 October 2019, the applicant filed his submissions. His argument was almost identical with the content of the Form 86. In his submissions, he also stressed that high standards of fairness and reasonableness are required in the determination of his right to non-refoulement protection because the decision has a significant effect on his non‑refoulement claim.  The applicant submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.   

7.  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 involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

8.  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, the judge had dealt with this (as recounted at para. 9 in our judgment) and it did not feature in the appeal before this court either.  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.  The ground regarding the current situation in India was also not raised. 

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

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

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

12.  By virtue of the above, the Notice of Motion dated 10 September 2019 is dismissed.