Hossain Afzal v. Torture Claims Appeal Board / Non-refoulement Claims Petition

CACV 21 /2019

[2020] HKCA 25

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 21 OF 2019

(ON APPEAL FROM HCAL NO 612 OF 2018)

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BETWEEN

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Before: Hon Cheung, Zervos JJA and S T Poon J in Court

Date of Judgment: 8 January 2020

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Background

1.By a judgment dated 10 May 2019 ([2019] HKCA 519) (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) given on 9 January 2019 in which he refused to grant leave to the applicant to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board dismissing the applicant’s appeal against the decision of the Director of Immigration 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.

Notice of Motion

3.By a Notice of Motion dated 20 May 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

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

“I would like to inform 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 [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.”

5.On 21 May 2019, Master Au-Yeung directed the applicant to lodge with the court his written submission on or before 3 June 2019, the deadline was extended to 16 July 2019 by the learned Master and the applicant lodged his written submission on 24 June 2019.  In his written submission, the applicant referred to various case authorities and stated in general terms the principles elicited therein without mentioning the relevance of the said principles to his grounds of appeal.

6.Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

Discussion

7.The applicant’s grounds and submissions are broad and vague. Insofar as he seeks to re-argue factual decisions, this approach had been rejected by this court in our judgment.

8.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.

9.None of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds. 

10.Nor do we find any basis to grant leave on the “otherwise” limb.  For the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Judgment.  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.

Disposition

11.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