Siddik Abu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

CACV 253/2019

[2019] HKCA 1398

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 253 OF 2019

(ON APPEAL FROM HCAL NO 526 OF 2018)

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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 8 October 2019 ([2019] HKCA 1106) dismissing his appeal against the decision of Deputy High Court Judge Bruno Chan on 31 May 2019 ([2019] HKCFI 1014) refusing leave to apply for judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 22 October 2019 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant has lodged his written submission on 4 November 2019.  It is appropriate to determine this application on paper and we do so accordingly.

3.By a Notice of Decision dated 6 April 2016 and a Notice of Further Decision dated 12 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decisions and his appeal was dismissed by the Board on 2 March 2018.

5.He filed a Form 86 on 29 March 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 31 May 2019.

6.The applicant filed a Notice of Appeal against the decision of the judge on 12 June 2019.  The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 18 July 2019.  The appeal was then dealt with on paper.  It was dismissed by the Court of Appeal on 8 October 2019.  The applicant filed a Notice of Motion on 21 October 2019 for leave to appeal to the Court of Final Appeal.

7.The applicant stated the following grounds of appeal in the Notice of Motion:

(1) There is some error in law in the decision.  The decision maker just relied on country of origin information (“COI”) and his previous facts which were in favour on rejecting his claims;

(2) The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director;

(3) The decision is biased and adopted a formula approach that is unlikely to fairly assess the danger of his life and is clearly calculated to reject his claim;

(4) Actual life occurs in different situation rather than as mentioned in COI.  Officers and courts prefer to ignore the overwhelming evidence of the violence towards minorities searching for unrealistic silver lining;

(5) The judge did not apply the law properly.

8.In his written submissions, the applicant 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.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.

10.The applicant’s grounds of appeal are just bare assertions without specifics or evidence in support.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his 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).

11.Therefore, the application for leave to appeal to the Court of Final Appeal should be dismissed.

The Applicant (Appellant), acting in person