RE PREM BAHADUR ADAI

CACV 134/2018

[2018] HKCA 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 134 OF 2018

(ON APPEAL FROM HCAL NO. 854 of 2017)

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JUDGMENT

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

1.  On 14 September 2018, this Court handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 18 September 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

Pursuant to the directions of the Registrar of Civil Appeals, the applicant has lodged a written submission on 2 October 2018.

3.  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.

4.  The Notice of Motion set out the following grounds:

(1) The lack of language assistance is not just with regard to the translation of the non-refoulement claim form (“NCF”). He could not come up with actual grounds regarding misinterpretation of the NCF when the NCF was never read back to him by an interpreter different from the one who helped him to fill in the NCF.

(2) “Non-refoulement claimant” is a new term and only came into existence with the implementation of the unified screening mechanism (“USM”) in 2014.  When Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration (unreported) HCAL 51/2007 were decided, there was not a separate BOR 2 risk assessment and there was only one ground for consideration, i.e. torture.  The authorities have applied old case law to the new situation which is fundamentally different.

(3) He had never been informed or advised he could request the Duty Lawyer Scheme (“DLS”) to provide assistance in connection with the BOR 2 claim because he did not receive the Director’s letter.  Even if he had received the letter, it would be unfair to assume he knew how to reach out to the DLS directly since previously he was referred to DLS by the Immigration Department.

5.  In respect of Ground (1), to the extent that the applicant is seeking to argue that the content of the NCF should be read back to him by an interpreter different from the one who assisted him to compile the NCF, this is a new ground not argued before the Judge or in the appeal before this Court.  It is not open to the applicant to advance new ground in an application for leave to appeal.

6.  In any case, this ground is case specific as it relates to the circumstances of the applicant and his case.  No question of great general or public importance is involved.  This ground is also unarguable for the reasons this Court gave in [13] of the Judgment.  

7.  On Ground (2), the fact that the Director undertook a further assessment of the applicant’s claim on the BOR 2 risk ground, after refusing the claim having regard to the torture risk, persecution risk and BOR 3 risk ground does not afford any basis to doubt the principle decided in the line of authorities the Judge referred to in [12] of the Form CALL-1 dated 20 April 2018, [2018] HKCFI 823, namely, the high standard of fairness does not prescribe that a claimant seeking non-refoulement protection is entitled as of right to legal representation at all stages of his application.  Likewise, it is irrelevant that Secretary for Security v Sakthevel Prabakar, supra, and FB v Director of Immigration, supra, were decided before the implementation of USM. 

8.  As for Ground (3), it is firstly case specific and does not involve any question of great general or public importance.  Secondly, it has no merit for the reasons set out in [14] and [15] of the Judgment.  Further, through the initial referral by the Immigration Department, the applicant has already been put in contact with the DLS and would have the means and knowledge of approaching the DLS for assistance if he so wished.

9.  In the written submission, the applicant advanced an additional argument that the Board should not have dealt with the BOR 2 risk ground because he had not made an appeal against the Director’s further decision that concerned the BOR 2 risk assessment.  This is a new ground neither raised before the Judge nor in the appeal before this Court.  As mentioned above, it is not permissible to raise new ground in an application for leave to appeal.  Further, there is no merit in this ground. When the Board heard the applicant’s appeal, the Director had issued the further decision.  Given that it is a rehearing of the applicant’s claim, it is only proper that the Board should give consideration to all the applicable grounds, including the BOR 2 risk ground, when deciding whether the applicant should be given non-refoulement protection.  The complaint of procedural unfairness is misplaced.        

10.  For the above reasons, the proposed grounds of appeal do not satisfy the requirements under section 22(1)(b).  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.