RE GHALE TEJ BAHADUR

CACV 220/2020

[2021] HKCA 1123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 220 OF 2020

(ON APPEAL FROM HCAL 1720/2018)

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J U D G M E N T

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

1.  On 1 April 2021, this court (Poon CJHC and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the judge”) on 18 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed on 5 May 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant identified a number of errors allegedly committed by the Board and the Director.  He also stated that:

(1)  it would be dangerous for the applicant to return to Nepal;

(2)  “many” asylum seekers were killed by force because the Director refused their claims and “pushed them to go back”;

(3)  his legal aid application was refused;

(4)  the Court of Appeal and the judge erred in failing to carry out sufficient research and inquiry into country of origin information (COI), the impact from the coronavirus pandemic and the political activities; and

(5)  no flight or other means of transport is available for the applicant to return to Nepal.

4.  In the affirmation filed on 5 May 2021, the applicant reiterated the matters raised in the Notice of Motion and deposed that:

(1)  he did not lodge skeleton submissions for the appeal before this court because he could not receive any letter from the High Court; and

(2)  the applicant did not understand English or the judicial system.  He also did not have the means to get legal assistance.

5.  The applicant lodged a written submission in support of the application on 17 May 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and he further submitted that:

(1)  it is dangerous to go back to Nepal because the local police have killed people in the name of reducing Islamic crime;

(2)  the Court of Appeal and the judge failed to provide reasons as to the “relevance or otherwise of the COI material employed”; and

(3)  the Court of First Instance and Court of Appeal failed to discharge its duty to comprehensively consider the lawfulness or fairness of decision-making.

6.  Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  We note that the applicant has not raised any of the complaints advanced in the present application in the application for leave for judicial review.  Also, the grounds had not been advanced in the appeal before this court.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

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

11.  For these reasons, the Notice of Motion dated 5 May 2021 is dismissed.