Re Subhash Kumar
Read the full judgment text of CACV 412/2018 on BabelCite. This Court of Appeal judgment was delivered on 17 June 2019.
1. On 1 February 2019, this court (Barma, McWalters JJA and B Chu J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 17 August 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.
Cited by 2 cases · Cites 5 cases
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CACV 412/2018 [2019] HKCA 666 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 412 OF 2018 (ON APPEAL FROM HCAL 1079/2017) -----------------------------------
----------------------------------- Before: Hon Barma, McWalters JJA and B Chu J in Court Date of Judgment: 17 June 2019 ___________________ J U D G M E N T ___________________ Hon Barma JA (giving the Judgment of the Court): 1.On 1 February 2019, this court (Barma, McWalters JJA and B Chu J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 17 August 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 12 February 2019, for leave to appeal to the Court of Final Appeal. The applicant stated in his Notice of Motion that
4.In the affirmation filed on the same day in support of the leave application, the applicant contended that:
5.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 February 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, 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. 7.The matters stated by the applicant in his Notice of Motion and the supporting 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. 8.The grounds in the Notice of Motion are vague. The first ground lacks particulars and is not reasonably arguable. As for the second ground, the applicant did not make any complaint in the appeal before us regarding the representation by the duty lawyer. 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] 9.As for the grounds in the affirmation, we have dealt with the issue of state acquiescence at [16] of our judgment. In relation to the alleged failure to find out the details of the current situation in India, as we have stated at [17], the court’s role is not to act as an avenue of further appeal. It is not necessary for this court (or the judge) to come to a view on the current situation in India. These grounds are also not reasonably arguable. 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 12 February 2019 is dismissed.
The applicant acting in person [1] See [2019] HKCA 152 [2] See Ageas Insurance Co (Asia) Ltd v Lam Hau Wah Inneo, CACV 65/2014, unreported, 19 May 2015, at [7] to [9]; and The Law Society of Hong Kong v A Solicitor, CACV 78/2014, unreported, 10 July 2015, at [4] to [7]. [3] See Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [39]. |
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