Re Padikkasu Kasinathan

CACV 275/2020

[2021] HKCA 596

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 275 OF 2020

(ON APPEAL FROM HCAL NO 1881 OF 2018)

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Before: Hon Au JA and G Lam J in Court

Date of Written Submissions: 25 February 2021

Date of Judgment: 29 April 2021

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.On 10 February 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s judgment of 27 January 2021 (“the Judgment”).[1] In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 15 July 2020 which had in turn dismissed his application for leave to apply for judicial review in relation to his non‑refoulement claim.

2.We see no reason to depart from the usual practice, as set out in paragraph 3 of Practice Direction 2.1, of determining an application of this kind without an oral hearing.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

4.In his Notice of Motion, the applicant raised the following grounds of appeal:

“ I would like to inform Court of Final Appeal. There is some error in law in my decision maker just relied on COL Information and my previous facts which were favour on reject my claim. Actual life occur different situation them mentioned COL Information. Officer and court prefers to ignore the overwhelming of the evidence of the violence toward a bias and formula approach unlikely fairly access the danger of my life and clearly calcute to reject my claim.” [sic]

5.The applicant lodged his written submissions on 25 February 2021, one day beyond the deadline directed by the Registrar of Civil Appeals, but we have considered them as the delay was minimal.  The grounds in his written submissions could be summarized as these: (a) he was not given an oral hearing before the High Court despite his request; (b) he did not have legal representation in the assessment of his BOR2 risk claim; (c) the assessment of his BOR2 risk claim before the Director of Immigration was determined without his awareness of his rights and the lack of language and legal assistances in that proceedings had undermined the result; (d) the Torture Claims Appeal Board violated procedural fairness in that it unlawfully feted its discretion and failed to meet the duty owed to a self‑represented claimant, and its decision was irrational.  Yet none of the grounds has identified with particularity any alleged error in the Judgment.

6.In our view, the applicant’s application is wholly without merit.  The allegation he was deprived of an oral hearing is not true, as he appeared and was heard both before the Deputy Judge and before this Court.  Further, the grounds of lack of language and legal assistance, and the ground of procedural unfairness, were advanced but rejected by us with reasons at [19]‑[23] of the Judgment.  The applicant has failed to identify any specific error in our conclusions.  There are no viable grounds of appeal against the Judgment.  Nor can we see any question of great general or public importance or any other reason why the appeal ought to be submitted to the CFA for determination.  The statutory requirements under section 22(1)(b) are not met.

7.The Notice of Motion is therefore dismissed.

The Applicant acting in person