Bapari Md Shahin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 309/2019

[2019] HKCA 1418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2019

(ON APPEAL FROM HCAL NO 363 OF 2018)

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J U D G M E N T

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

1.This court handed down judgment on 24 October 2019 ([2019] HKCA 1177) dismissing the applicant’s appeal against an order of DHCJ Josiah Lam given on 28 June 2019 refusing his application for leave to apply for judicial review concerning his non‑refoulement claim. The facts and issues in the appeal before the Court of Appeal, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

2.The applicant filed a Notice of Motion on 4 November 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 18 November 2019.

3.Pursuant to the directions made by the Registrar of Civil Appeals on 5 November 2019, the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

4.In the Notice of Motion, the applicant stated as follows:

“Dear Sir/Madam,

I would like to [inform] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [COI] Information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COL [COI] Information. The Officer and [courts] prefers 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.” (sic)

5.In the applicant’s written submissions, he stressed that high standards of fairness and reasonableness are required in the determination of his right to non-refoulement protection because the decision has a significant effect on his non‑refoulement claim.  The applicant submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He also referred to various case authorities and argued that an unreasonable decision should be set aside. 

6.The applicant’s grounds are not relevant to the decision in our judgment, which was that it was a clear abuse of the process for him to have lodged a second application based on grounds which could and should have been advanced in his first application.

7.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

8.No question of great general or public importance has been identified in the grounds in the Notice of Motion.

9.Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

10.In the circumstances, we cannot find any basis for granting leave to appeal to the Court of Final Appeal.

11.By virtue of the above, the Notice of Motion dated 4 November 2019 is dismissed.

The applicant, unrepresented, acting in person