Re Vikas

CACV 149/2018

[2018] HKCA 697

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 149 OF 2018

(ON APPEAL FROM HCAL NO. 572 of 2017)

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JUDGMENT

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

1.On 22 August 2018, this Court (Chu and Barma JJA) handed down our judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 2018 refusing him leave to apply for judicial review.  

2.By a Notice of Motion dated 24 August 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. Despite the directions of the Registrar of Civil Appeals given on 31 August 2018, the applicant has not lodged any written submission by 7 September 2018.

3.Under [3] of Practice Direction 2.1 on Applications for leave to appeal to the Court of Final Appeal filed in the Court of Appeal in Civil Cases, this Court will in general deal with and determine applications for leave to appeal to Court of Final Appeal on paper without an oral hearing.  Notwithstanding the applicant’s request for an oral hearing, we see no ground for departing from the general practice, and have proceeded to consider the applicant’s application on paper.

4.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

5.In the Notice of Motion, the applicant asked for a reconsideration of his case and advanced the following grounds:

(1)   The Director made the BOR 2 risk assessment without referring the case to the Duty Lawyer Scheme.  The judgments laying down the high standard of fairness were out-dated, being decided in 2004 and 2009 when the Unified Screening Mechanism was not even implemented. 

(2)   The Director had asked for additional information and did make a separate assessment under the ground of BOR 2 risk. It was contradictory for the Judge to say he saw no additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, torture risk and persecution risk grounds.

(3)   The applicant did not have assistance in understanding the judgment, which was in English.  It was merely an assumption to suggest that the applicant could have access to, or was able to seek, language assistance as and when he needed it or from the time when the Duty Lawyer Scheme stopped representing him.     

6.Before the Judge, the thrust of the applicant’s complaints against the Board’s decision was that: (1) no oral hearing was held to hear his appeal against the Director’s BOR 2 risk assessment; and (2) the Board relied on information that was not officially recognized, outdated or was simply hearsay.  In the Notice of Appeal, the applicant reiterated his complaint about not being given an oral hearing before the Board on his appeal against the Director’s BOR 2 risk determination. 

7.The high standard of fairness mentioned in Ground (1) above and the argument in Ground (2) above were never part of the applicant’s case whether before the Judge or before this Court. They do not arise from the Judge’s decision or this court’s judgment.  

8.Similarly, Ground (3) does not bear any relevance to the Judge’s decision or this Court’s judgment.  The applicant only argued in his appeal before this court that because he did not have legal and language assistance, he should be given an opportunity to make oral representation to the Board in respect of his appeal against the BOR 2 risk assessment.  The lack of, or non-availability of language assistance was not a ground of complaint whether before the Judge or before this Court. 

9.In addition, the grounds advanced by the applicant do not involve any question of great, general or public importance. There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

10.In the circumstances, the condition for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.