Gurung Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 257 /2024, [2025] HKCA 767

On appeal from [2024] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2024

(ON APPEAL FROM HCAL NO 1692 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 30 October 2024 ([2024] HKCA 1009). The Court of Appeal rejected the appeal against the decision of Deputy High Court Judge K W Lung dated 17 June 2024 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 15 November 2024.  The applicant requested for an oral hearing but did not state any reasons in support^[1]. Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Analysis and disposition

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 at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, 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.

4.The applicant stated his grounds in his Notice of Motion and written submissions which may be summarised as follows:

(1)  The Court of Appeal had erred in finding that the judge had not failed to appreciate the significance of the applicant’s non-refoulement claim;

(2)  The lack of assistance to the applicant was an error of law or procedure, and evidence of procedural unfairness, or failure to adhere to a high standard of fairness;

(3)  The applicant’s language incapability was ignored.  The Board’s decision was not translated to the applicant.  It is the basic right of a litigant to understand what was decided against him so that he can make a full review later on.  The judge’s failure to acknowledge this lack of procedural fairness amounts to an erroneous judgment.  It is not true that the applicant can find people to assist him with interpretation or translation and dealing with English documents at all material times.  The courts and adjudicator owe a duty of care to self-represented litigants.  The court has not explained why no assistance can be provided to the applicant who does not understand the official languages.  Despite having legal representation when presenting his case to the Director of Immigration, he did not receive any language or legal assistance during his appeal to the Board or in the courts.  It is inconceivable for the applicant to identify any legal errors in the Board’s decision or the court’s judgment without language or legal assistance.  It cannot be said that the assistance cannot be of any use as it was not granted in the first place;

(4)  The court cannot deny all cases by saying “cannot interfere with the Board’s decision”;

(5)  This is a wrongful exercise of case management power.  A case management power should extend to how a judgment is delivered;

(6)  The judgment has been made with the lack of evidential consideration of the issues raised and it should be considered an erroneous judgment;

(7)  The judgment of the Court of Appeal does not make logical sense at all; and

(8)  The applicant’s case was determined unfairly as he was deprived of his right to an oral hearing and the observations of the judge are not justified.

5.The applicant’s grounds contending that the judgment does not make logical sense and lack of evidential consideration of the issues raised, as well as the observations of the judge are not justified, are just bare assertions without elaboration or evidence in support.  The applicant failed to state what issues have not been considered, how it is said that the judgment does not make logical sense and why the observations of the judge are not justified.

6.Besides, the Court of First Instance concluded that there is no reason to interfere with the Board’s decision as the applicant did not put forward any valid reason to challenge the Board’s decision.  The applicant failed to show that the court was wrong in this respect. 

7.The rest of the grounds have already been dealt with in our judgment of 30 October 2024 and we have provided reasons and authorities in support in rejecting his grounds.  The applicant does not have any viable submissions which can show that our judgment was wrong.  He also failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8.For the above reasons, we dismiss the Notice of Motion filed on 4 November 2024.

[1] See last paragraph in the Notice of Motion