RE SAROJ KUMAR KARKI

CACV 576/2019

[2021] HKCA 1939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 576 OF 2019

(ON APPEAL FROM HCAL 986/2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 4 June 2020 ([2021] HKCA 429) (“Judgment”), dismissing the applicant’s appeal from a decision dated 2 December 2019 ([2019] HKCFI 2451) by Deputy High Court Judge Bruno Chan, refusing him leave to apply for judicial review of the decision dated 25 May 2018 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“NRF Claim”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  In a nutshell, by the notice of motion and written submission filed on 2 and 16 July 2020 respectively, the applicant reiterated his complaint of procedural unfairness arising from the failure to provide him with (1) legal assistance after the decision and further decision of the Director of Immigration (“Director”) and (2) language assistance after the Director’s decisions save at the hearings before the Board, the Judge and the CA.

Discussion

5.  We dealt with a non-refoulement claimant’s entitlement to legal and language assistance in [19] to [21] of the Judgment.  Neither the notice of motion nor the written submission really engaged the reasons we gave there.

6.  The applicant has not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb.  As noted in [10] of the Judgment, despite being present at the hearing before the Board, the applicant refused to testify. The Board was left to assess the NRF Claim on the basis of the information previously provided by the applicant to the Director.  However, the Board found itself bound not to give weight to such information because the applicant’s refusal to answer its questions had prevented it from clarifying certain doubts/concerns going to the core of the NRF Claim.

8.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.