RE HIKMAT TULACHAN

CACV 334/2018

[2019] HKCA 242

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 334 OF 2018

(ON APPEAL FROM HCAL 495/2017)

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J U D G M E N T

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

1.  By our judgment dated 29 November 2018,[1] we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 12 July 2018[2] refusing leave to apply for judicial review.

2.  By a notice of motion dated 3 December 2018, the applicant sought leave of appeal to the Court of Final Appeal against our judgment.  It is stated that we were wrong to conclude that there was no substance in the grounds of his application that his legal representative performed poorly and that he had insufficient time to address the hearing bundle.

3.  In his supporting affirmation dated 3 December 2018, the applicant deposed that we erred in law in holding that there was no state acquiescence or involvement and that we failed to find out details about the current situation in Nepal.

4.  In compliance with the directions of the court, the applicant lodged his written submission on 7 January 2019.  After setting out the factual background of his case and referring to various authorities, the applicant submitted that high standards of fairness were required in the determination of a torture claim and the Torture Claims Appeal Board erred in failing to consider the substantive merits of his claim, and that the decision maker was under a common law duty to act fairly.

5.  In our judgment,[3] we explained that we dismissed the applicant’s appeal on the basis that he failed to put forth any viable grounds to reverse the judge’s decision.  We also explained that there was no basis for the applicant to ground his claim on state acquiescence or involvement.

6.  In his application, the applicant has not engaged any of our reasons in dismissing his appeal.  The complaint in relation to the performance of his legal representative has never been raised before, nor was it addressed in his written submission.

7.  The applicant has not raised any question of great general or public importance.  Nor is there any reason to grant leave on the “or otherwise” limb.  The statutory criterion for granting leave to appeal to the Court of Final Appeal is therefore not met: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

8.  Accordingly, we dismiss the application for leave to appeal to the Court of Final Appeal.