RE CHELLAM GOVINDAN

CACV 282/2018

[2021] HKCA 324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 282 OF 2018

(ON APPEAL FROM HCAL 845 /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 10 December 2018, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 22 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 10 March 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“I am not satisfied with decision because this will lead my life towards more danger. I can’t go back to my country at this moment because my life is not safe in my homeland in India. I just humbly request to respected court to help me to stay in Hong Kong till my problems solved in my country.”

4.  The applicant lodged a written submission in support of the application on 14 April 2020.  In the written submission, the applicant submitted that he did not know that his failure to file skeleton submissions would mean that there would not be an oral hearing.  He submitted that he should have been given legal and language assistance for his claim under BOR 2 risk.  He claimed that all acts of the authorities had been highly discriminatory and unfair to him. 

5.  Having considered the applicant’s notice of motion and written submission, 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.

6.  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 she has raised.

7.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review.  It is also not a valid ground of appeal.

8.  As for the grounds raised in the submissions, we have already given reasons for not fixing an oral hearing at [14] – [16] of our judgment. 

9.  We note that, hitherto, the applicant has not raised any complaint related to his claim under BOR2 risk.  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 10 March 2020 is dismissed.