Re Moung Khing Rakhing

CACV 75/2018

[2018] HKCA 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 75 OF 2018

(ON APPEAL FROM HCAL 408/2017)

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Before: Hon Lam Acting CJHC, Barma JA and McWalters JA in Court

Date of Judgment: 14 September 2018

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J U D G M E N T

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Hon McWalters JA (giving the Judgment of the court):

1.On 25 July 2018, this court (Lam VP and McWalters JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodwock (“the judge”) on 23 March 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 a decision 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 13 August 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that he could not go back to his home country, Bangladesh, because he was a member of an ethnic minority there.  He also complained for the first time that he could not understand the interpreter during the interview before the immigration officer and the proceedings before the judge, as the language used by the interpreter was not his mother language.

4.In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 23 August 2018.  In his written submission, the applicant reiterated that he could not return to Bangladesh because he was a member of an ethnic minority in that country and as a consequence he would be arbitrarily deprived of his life.

5.Having considered the applicant’s notice of motion and written submission, we can find no reason for us to depart from the usual practice of determining an application of this kind on the papers.  Being unable to see any reason or need for an oral hearing we have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.The matters stated by the applicantin his notice of motion do not constitute valid 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 in accordance with section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from all the matters he has raised in both his notice of motion and his written submission.  It was the Board’s conclusion that the applicant had failed to establish a case for non-refoulement protection and that state protection was available to him upon his return to Bangladesh.  Neither the Court of First Instance nor this court could find any reason on public law grounds to reverse the Board’s decision or in any way be a basis for challenging that decision.

7.We note that, hitherto, the applicant has not raised any complaint of an inability to understand either the proceedings before the Immigration Officer or the Board.  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]

8.In any event, we are satisfied his complaint has no merit.  We note that in [20] of the Board’s decision dated 19 May 2017, the applicant confirmed to the Board that he would adopt all the information in the Non-refoulement Claim Form and the records of interview.  Significantly he made no mention of any linguistic impediment in respect of those documents or the process from which they came into being.  In our view, this complaint is plainly not 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 13 August 2018 is dismissed.

The applicant acting in person