Re Purja Binod

CACV 533/2019

[2022] HKCA 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 533 OF 2019

(ON APPEAL FROM HCAL 1929/2018)

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Before: Hon Barma JA, Barnes and Lisa Wong JJ in Court

Date of Judgment: 6 January 2022

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 7 May 2020 ([2020] HKCA 290) (“Judgment”), dismissing the applicant’s appeal from a decision dated 18 November 2019 ([2019] HKCFI 2813) by Deputy High Court Judge K W Lung (“Judge”), refusing him leave to apply for judicial review of the decision dated 23 August 2018 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim.

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals (“Registrar”), unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA 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.

Applicant’s contentions in support of leave to appeal to CFA

4.In support of the application, the applicant made the following contentions in the notice of motion filed on 9 June 2020 (sic):

“- The claims that the Judgment has made stated is no substance in the grounds of the application is not true

- On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of learning he will be picked out for misappropriating by the adjudicator

- The applicant gently did not have enough time to address the bundle

Rest of the grounds I will submit as soon as possible”

5.The applicant also filed a supporting affirmation on the same date.  Apart from exhibiting a copy of the Judgment, the material part of that document read:

“The grounds of my application are as follows:-

(1) The Honourable Judges from the Court were wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honourable Judges from the Court also failed to find out the clear details of the current situation of Nepal.”

6.On 6 July 2020, the applicant lodged written submission by which he again[1] referred to ST v Director of Immigration (sic)[2] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  He further cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for Civil Service [2008] 5 HKLRD 217 to show that a decision-maker is under a constitutional duty to act fairly and to follow minimum standards of procedural fairness in the decision-making process.

7.In addition, the applicant also quoted in his written submission random articles/sections of the Basic Law, the International Covenant on Civil and Political Rights, the United Nations Convention against Torture and the Hong Kong Bill of Rights Ordinance (Cap 383) and the Hong Kong Bill of Rights under s 8 thereof.

Discussion

8.The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise. 

9.Nor do we see any scope to grant leave under the “or otherwise” limb.  

10.Neither the notice of motion nor the supporting affirmation or the written submission really engaged the reasons we gave in the Judgment. 

11.The assertions in the documents filed by the applicant for this application are in any event unmeritorious:

(1)  First, the applicant never before questioned the performance of the duty lawyer representing him before the Director of Immigration.

(2)  Second, although the applicant did previously make a complaint before the Judge about the bundle used at the Board hearing but his dissatisfaction then was that the documents were in English and not translated, not that he did not have sufficient time to address them.

(3)  Third, neither the Judge nor this court made any finding as to the presence or otherwise of state involvement or acquiescence. It was not within our purview to do so.

(4)  Fourth, in processing a claim for non-refoulement protection, the Director and the Board alone assess the evidence including country of origin information.  Neither the Judge hearing an application for leave for judicial review nor the CA hearing an appeal from a refusal of leave for judicial review is required to inquire into the condition of the claimant’s home country.

(5)  Fifth, the applicant did not suggest whether and, if so, how the principles laid down in the authorities and human rights provisions cited in the written submission have not been met in the processing of his claim.

12.As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

The applicant, unrepresented, appeared in person