RE MADHASHIYA VINAY

CACV 171/2023, [2026] HKCA 1202

On appeal from [2023] HKCFI 1304

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 171 OF 2023

(ON APPEAL FROM HCAL 849/2019)

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J U D G M E N T

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The Court:

1.  On 15 November 2023, this court (Barma JA and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 24 May 2023 refusing to grant leave for 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 decision of the Director of Immigration rejecting his non‑refoulement claim.

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 November 2023, for leave to appeal to the Court of Final Appeal.  As the Notice of Motion was defective, the applicant was directed by the Registrar of Civil Appeals to file and serve an amended Notice of Motion, which he duly did on 22 January 2024.

4.  In the amended Notice of Motion, the applicant complained, inter alia, that he was prejudiced in the processing of his claim and/or his appeal by reason of a lack of language and legal assistance.  He also claimed, without elaboration or particulars, that the Judge failed to appreciate the significance of his claim, and that the Judge failed to adhere to a high standard of fairness.

5.  In breach of Practice Direction 2.1, the applicant did not lodge written submissions in support of the amended Notice of Motion.  He did however, previous to the amendment, lodge written submissions in support of the original Notice of Motion on 11 December 2023.  For the purpose of this application, we are prepared to treat those submissions as those to be relied upon by the applicant in support of the amended Notice of Motion, wherein (besides his repeated complaints concerning the lack of language and legal assistance) he contended inter alia that (i) this court’s judgment “did not make logical sense”; (ii) notwithstanding that he was a “layman”, the Judge failed to render him assistance in the proceedings below in breach of procedural fairness; and (iii) the Judge and/or this court were “too strict with non‑refoulement claimants like [him]” which amounted to discrimination against “people who do not have legal representation”.

6.  Having considered the applicant’s amended 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.  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.  The amended Notice of Motion does not identify any supposed error in our judgment and it raises 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 amended Notice of Motion dated 22 January 2024 is dismissed.