Rathnayaka Mudiyanselage Jagath Priyantha v. Torture Claims Appeal Board

CACV 212/2022

[2022] HKCA 1856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2022

(ON APPEAL FROM HCAL 2033 OF 2018)

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Before:  Hon Chow JA and Ng J in Court

Date of Written Submissions:  24 November 2022

Date of Judgment:  23 December 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 20 September 2022, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 17 May 2022refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board dated 7 September 2018, whereby the Board dismissed the Applicant’s appeal against the decisions of the Director of Immigration dated 22 July 2015 and 14 June 2017.

2.On 10 November 2022, the Applicant issued a notice of motion (“the Notice of Motion”) seeking an order to set aside the CA Judgment. Although the Notice of Motion was filed in the Court of Appeal, the Applicant sought the order from “the Court of Final Appeal / Appeal Committee / a permanent Judge of the Court”.

3.For the benefit of the Applicant, we shall treat the Notice of Motion as an application to the Court of Appeal for leave to appeal against the CA Judgment under s 24(1) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“HKCFAO”).

4.In accordance with paragraph 3 of Practice Direction 2.1, the present application is dealt with on paper without an oral hearing.

5.Under s 22(1)(b) of the HKCFAO, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), 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 Court of Final Appeal for decision.

6.In the Notice of Motion and his written submissions dated 24 November 2022, the Applicant’s principal complaint concerns the alleged lack of legal and/or language assistance. In particular, the Applicant complains that the Board’s Decision and the CALL-1 Form were not explained to him by a qualified interpreter or translator. This complaint about the lack of legal and/or language assistance is a new complaint which was not raised in the application for leave to apply for judicial review before the Judge, or in his appeal to the Court of Appeal. We do not see any good reason why the Applicant shall be allowed to raise a new ground of complaint which he did not raise in either the Court of First Instance or Court of Appeal for consideration by the Court of Final Appeal.

7.In any event, no question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the proposed appeal. We are satisfied that the intended appeal has no merits and no reasonable prospect of success. There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

8.Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

The Applicant, acting in person