Re Gurung Chetbahadur

CAMP 195/2022

[2023] HKCA 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 195 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2545 OF 2018)

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Before:  Hon Cheung and Au JJA in Court

Date of Judgment: 6 January 2023

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J U D G M E N T

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

1.On 3 November 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 19 October 2022 (“the Judgment”) ([2022] HKCA 1538). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge P Li (“the Deputy Judge”) dated 10 February 2022, refusing his application for leave to apply for judicial review ([2022] HKCFI 430).

2.The facts and issues in the appeal, as well as this 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 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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 Court of Final Appeal for decision.

4.In the Notice of Motion, the applicant stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON-REFOULEMENT CLAIM. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY LEAVE TO APPLY FOR JUDICIAL REVIEW. ALL THIS JUDGEMENTS ARE NOT GOOD FOR ME. I WANT TO GO TO C.F.A.” (sic)

5.Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 17 November 2022.  In those submissions, he repeated the factual basis and procedural history of his non-refoulement claim and claimed that the Board had made many errors.  He claimed that he pointed all those out but the Court of Appeal did not take his arguments and he did not “get any practical relation between any decision and [his] arguments”.  He then contended that he wished the Court of Final Appeal would give him a good decision and all his asylum seeker friends as they are facing the same problem.

6.In our view, his intended appeal is clearly without substance.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  He also failed to condescend upon particulars or provide any evidence to show how his case has any relevance to that of his “asylum seeker friend” or how they “are facing the same problem”.  More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  Accordingly, the applicant’s intended appeal plainly has no merit.

7.Further and in any event, even taking his case at its highest, the applicant’s contentions are fact‑specific and do not relate to any question of great general or public importance.

8.Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

9.For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.

The applicant acting in person