RE KULDIP SINGH

CACV 231/2018

[2019] HKCA 294

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 231 OF 2018

(ON APPEAL FROM HCAL 504/2017)

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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 30 October 2018, this court (Barma JA and Anthony Chan J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 7 June 2018 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 dated 2 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his Notice of Motion that:

(1)   the applicant does not understand why a judge of the Court of First Instance would be determining his case at the Court of Appeal;

(2)   the lack of representation in his claim based on BOR 2 risk was procedurally unfair.  He would have passed the means and merit test of the Duty Lawyer Service; and

(3)   the applicant did not understand what BOR 2 risk meant.  Without language and legal assistance, he could not make a proper case for his claim under BOR 2 risk.  He had shown sufficient evidence on prejudice but the court did not want to listen.

4.  In his submissions dated 8 January 2019, the applicant repeated the matters raised in the Notice of Motion.

5.  Having considered the applicant’s Notice of Motion and submissions, 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 his Notice of Motion and submissions.

6.  The matters stated by the applicant in his Notice of Motion and submissions do not constitute grounds for granting leave 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 in his Notice of Motion.  

7.  As to the applicant’s first point, a judge of the Court of First Instance may, on the request of the Chief Justice, sit as an additional judge of the Court of Appeal under section 5(2) of the High Court Ordinance, Cap 4.

8.  We have dealt with the lack of legal representation and the absence of prejudice in relation to his claim based on BOR 2 risk at [17]-[18] of our judgment. 

9.  As for the ground based on the lack of understanding of the meaning of BOR 2 risk on the part of the applicant, we note that, hitherto, the applicant has not raised this ground in the notice of appeal.  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 2 November 2018 is dismissed.