Case Document

100%Judiciary

CACV 555/2018

[2019] HKCA 783

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 555 OF 2018

(ON APPEAL FROM HCAL 333/2018)

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RE:

HUSSAIN IBRAR

Applicant

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Before:

Hon Chu, Barma 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 10 April 2019, this court (Chu, Barma and Au JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 19 November 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 decision 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 dated 23 April 2019, for leave to appeal to the Court of Final Appeal. The applicant stated in the Notice of Motion that:

“I am not satisfied with the decision because its lead towards to my life. Because I am fear to go back to my home land in Pakistan because my life is danger in my country. I think there is not high standard and unfair authority decision in my case. So please help me to stay in Hong Kong till my problems finished in my home land”

4.In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 6 May 2019. In the written submission, the applicant submitted that he should have been given an oral hearing both for his judicial review leave application and appeal. There was a lack of legal representation because his claim based on BOR2 risk was not referred to the Duty Lawyer Service. The authorities had been highly discriminatory and unfair to him.

5.Having considered the applicant’s Notice of Motion and written submission, 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 and written submission.

6.We have addressed the issue on BOR 2 risk and legal representation at [15] of our judgment. There was no hearing for his judicial review application because he did not request one. Because the applicant failed to comply with the direction to lodge skeleton submissions, there was no hearing for the appeal ([12] of our judgment). Lastly, the bare assertion by the applicant that it is unsafe for him to return is not a valid ground for seeking leave for judicial review. We are of the view that none of the grounds advanced by the applicant is reasonably arguable before the Court of Final Appeal.

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

8.For these reasons, the Notice of Motion dated 23 April 2019 is dismissed.