Re Khan Irfan

CACV 361/2020

[2021] HKCA 1112

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 361 OF 2020

(ON APPEAL FROM HCAL NO 2805 OF 2018)

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Before:  Hon Au JA and Coleman J in Court

Date of Written Submissions: 30 April 2021

Date of Judgment: 30 July 2021

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

1.On 16 April 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Coleman J) judgment of 9 April 2021 (“the Judgment”) [2021] HKCA 490. In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 30 July 2020.

2.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal (“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, in summary, that:

(1)  The lack of assistance provided in the non-refoulement claim amounted to an error of law or procedural unfairness or failed to adhere to the high standard of fairness;

(2)  The Court failed to address paragraphs (6) to (10) in the applicant’s skeleton submissions dated 1 March 2021;

(3)  The applicant was deprived of the right to make full grounds of appeal as he was not provided with language assistance.

5.In his written submissions of 30 April 2021 filed pursuant to the directions of Registrar of Civil Appeals, the applicant effectively repeated his complaints of lack of language and legal assistance, and also submitted that the Judgment does not make logical sense.

6.In our view, the applicant’s application is totally without merit.

7.The applicant in the Notice of Motion complained that this Court failed to address his arguments at paragraphs 6 to 10 of his written submissions dated 1 March 2021.  A review of his written submissions dated 1 March 2021 shows that paragraphs 6 to 9 concerned the alleged lack of language assistance, paragraph 9 sought the relief of remediation of the case, whilst there is no paragraph 10.  Further, it is also pertinent to note that the applicant conceded before us that he was not entitled to free legal representation: [12] of the Judgment.

8.In the premises, the complaint in this application remains the alleged lack of language assistance, which we had dealt with at [20(1)] of the Judgment.  Instead of identifying errors with sufficient particularities as to why this Court was wrong in so holding, the applicant simply regurgitated those arguments advanced before us, but which failed.  This is not a viable ground of appeal: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

9.In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

10.For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.

The applicant acting in person