Case Document

100%Judiciary

CACV 464/2018

[2019] HKCA 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 464 OF 2018

(ON APPEAL FROM HCAL 52/2018)

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RE:

ISLAM MOHAMMAD TAJOL

Applicant

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Before:

Hon Barma, McWalters and Au JJA in Court

Date of Judgment:

26 July 2019

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J U D G M E N T

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

1.On 4 March 2019, this court (Barma, McWalters and Au JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 7 September 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion filed on 10 April 2019, for leave to appeal to the Court of Final Appeal out of time. The applicant stated in the Notice of Motion that:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI Information. The Officer and courts prefer to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.In the affirmation filed on 10 April 2019, the applicant deposed that:

“I could not file Notice of Motion within the defined time frame because I was arrested and detained in Lai Chi Kok Reception Centre. I seek leave to file Notice of Motion out of time.”

5.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 12 April 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have, therefore, determined the applicant’s application on the basis of the Notice of Motion.

7.The matters stated by the applicant in the Notice of Motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484. Nor is any such question apparent to us from the matters he has raised in the Notice of Motion. The grounds in the Notice of Motion are apparently directed towards the Board and the Director. They do not identify any error in our judgment. In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

8.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.For these reasons, the Notice of Motion filed on 10 April 2019 is dismissed.