Re Talat Arslan

CACV 41/2019

[2019] HKCA 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 41 OF 2019

(ON APPEAL FROM HCAL NO 262 OF 2018)

______________________

______________________

Before:  Hon Chu, Barma and Au JJA in Court

Date of Written Submissions: 7 August 2019

Date of Judgment:  31 December 2019

____________________

J U D G M E N T

____________________

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

1.By a judgment dated 15 July 2019 ([2019] HKCA 708) (“the Judgment”), this court (Hon Chu, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 18 January 2019 refusing his leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 8 February 2018 and the decision of the Director of Immigration dated 28 October 2016 rejecting the applicant’s 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 the Judgment.  We will not repeat them here.

3.By a Notice of Motion dated 26 July 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), leave to appeal to the Court of Final Appeal may be granted if 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.

5.In the Notice of Motion, the applicant set out the following grounds:

“I am not satisfied with the decision because this will leads my life towards more danger. I can’t go back to my home land in Pakistan at this moment because my life is not save in my country in Pakistan. I am seeking help from respected court to allow me to stay in Hong Kong until I solved my problems. I am very thanks full to you for your kind favor...” [sic]

6.In compliance with the directions given by Master Au‑Yeung on 30 July 2019, the applicant lodged his written submissions on 7 August 2019.  In the written submissions, the applicant listed further grounds of appeal.  In summary, they are: (a) he did not know the failure to submit skeleton submissions before this court would lead to the abandonment of oral hearing and it was unjust that this court never heard him in person; (b) he did not have legal representation for his BOR2 assessment; and (c) the lack of language assistance.

7.We have duly considered the applicant’s Notice of Motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

8.We do not find any merits in this application.

9.First, we have dealt with the applicant’s abandonment of right to an oral hearing at [2] ‑ [3] of the Judgment.

10.Second, the ground of the lack of legal representation in his BOR2 assessment was dealt with by the Deputy Judge.  He found that there was no error in law or procedure: see [12] ‑ [14] of the Deputy Judge’s Decision.  We do not find any legal errors in his decision: see [19] of the Judgment.

11.Third, the ground of the lack of language assistance was not argued before the Deputy Judge. Nevertheless, we had dealt with it in the Judgment: see [20] of the Judgment.

12.In other words, the applicant failed to identify any particular and specific errors in the Judgment.

13.As such, none of the grounds in the applicant’s Notice of Motion and his written submissions contain any viable grounds of appeal that have any arguable merits to warrant the grant of leave to appeal the Judgment to the Court of Final Appeal.

14.In any event, none of the questions raised by the applicant in the Notice of Motion or in his written submissions involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

15.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

The applicant acting in person