Case Document

100%Judiciary

CAMP 68/2018

[2019] HKCA 205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 68 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 483/2017)

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RE:	MALLIKA ARACHCHE	Applicant
	THUSHARA SHANTHI KUMARA

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Before:

Hon Chu, Barma and Au JJA in Court

Date of Judgment:

26 February 2019

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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 25 July 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 4 May 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 31 December 2018, for leave to appeal to the Court of Final Appeal. The applicant stated in his Notice of Motion that:

“Dear Sir/Madam,

I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and courts prefer to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.

I want to say that I gave my supporting document before when the court ask I gave my all document regarding my case in Sri Lanka but only one document I gave …it was death certificate of my uncle killed by my enemies. I think court disregarded my copies”

4.In his affirmation also dated 31 December 2018, the applicant deposed that:

“I am writing the grounds that my case was rejected by high court because I submit my all document in time but I did and of gave 5 document for support my case only one document I was never gave the translation of my uncle death certificate it was done by my enemies it can be happen to me if I go”

5.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 3 January 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.Having considered the applicant’s Notice of Motion and affirmation, 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 his Notice of Motion and affirmation.

7.The matters stated by the applicant in his Notice of Motion and affirmation 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 in his Notice of Motion and affirmation. We have dealt with the application to adduce fresh evidence at [12] – [18] of our judgment.

8.As for the complaint against the Board regarding the use of COI, we have already held at [26] of our judgment that this is not a valid ground for judicial review.

9.In our view, these grounds are plainly not reasonably arguable before the Court of Final Appeal.

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 31 December 2018 is dismissed.