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

CAmp 38/2019

[2019] HKCA 908

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 38 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 811 OF 2017)

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Before: Hon Kwan VP, Cheung JA and Barma JA

Date of Written Submission: 19 July 2019

Date of Judgment: 14 August 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 an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 July 2019 ([2019] HKCA 748), dismissing the applicant’s application for leave to appeal out of time against the refusal of leave to apply for judicial review concerning his non-refoulement claim.

2.By a Notice of Decision dated 30 June 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3.The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 6 October 2017.

4.He filed a Form 86 on 26 October 2017 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge Woodcock on 27 July 2018. 

5.On 5 March 2019, the judge refused to grant leave to the applicant to appeal against her decision out of time as there is no prospect of success in the intended appeal.

6.The applicant renewed his application to the Court of Appeal for leave to appeal against the decision of the judge out of time.  It was dismissed by the Court of Appeal on 8 July 2019 as there is no reasonable prospect of success in the intended appeal.

7.The applicant filed a Notice of Motion on 9 July 2019 for leave to appeal to the Court of Final Appeal.  He stated the following in the Notice of Motion as his grounds of appeal:

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

8.In his written submissions dated 19 July 2019, he submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He also stressed that high standards of fairness are required in the determination of a torture claim as the decision has a significant effect on the applicant’s claim.

9.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 July 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We think it appropriate to do so and will determine this application on paper.

10.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.

11.The applicant’s grounds of appeal and his submissions are just bare assertions without particulars.  They do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  He has 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).

12.We therefore dismiss his application for leave to appeal to the Court of Final Appeal.

The Applicant, acting in person