RE SHERPUNJA THAPA KUL PRASAD

CACV 345/2022, [2024] HKCA 1056

On appeal from [2022] HKCFI 2434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2022

(ON APPEAL FROM HCAL 166 OF 2019)

____________________

____________________

___________________

J U D G M E N T

___________________

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

1.  On 22 February 2023, this court (Barma JA and ST Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 August 2022 refusing to extend time for the applicant to apply for leave to apply for judicial review and refusing to grant leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal against the decisions of the Director of Immigration rejecting his non‑refoulement claim, as well as the Director’s decisions themselves.

2.  The facts and issues in the applicant’s 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 27 February 2023, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant complained, in gist, that this court erred by not appreciating the “significance” of his non-refoulement claim, that he had been deprived of the right to make “full grounds for appeal” as he did not understand this court’s judgment, and that he had a “language incapability”.

4.  In his written submissions lodged on 13 March 2023, the applicant essentially repeated and elaborated on his complaints made in the Notice of Motion.

5.  By a letter to the court dated 17 April 2023, the applicant applied to withdraw the Notice of Motion (“the Withdrawal Application”) by reason that his problem in Nepal had been resolved and that he wished to return as soon as possible.

6.  Having considered the applicant’s Notice of Motion and written 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 the documents filed.

7.  In light of the Withdrawal Application, there is no reason why the Notice of Motion should not be dismissed.  In any event, 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.

8.  Neither the Notice of Motion nor the written submissions identify any supposed error in our judgment and they raise no ground that is reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 27 February 2023 is dismissed.

11.  On 13 September 2024, the court was notified by the Director of Immigration (“the Director”) that the applicant has been removed from Hong Kong.  We will send a copy of this judgment and the sealed order to the Director and request that he uses his best endeavours to forward them to the applicant.