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

CACV 395 /2019

[2020] HKCA 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 395 OF 2019

(ON APPEAL FROM HCAL NO 375 OF 2018)

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Before:  Hon Kwan VP, Cheung JA and Chu JA in Court

Date of Written Submission: 16 January 2020

Date of Judgment:  23 April 2020

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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.On 12 December 2019, this Court (Kwan VP and Cheung JA) handed down a judgment ([2019] HKCA 1402) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam on 19 August 2019 ([2019] HKCFI 2053) refusing to grant leave to apply for judicial review concerning his non-refoulement claim. The applicant filed a Notice of Motion on the same day for leave to appeal to the Court of Final Appeal against our judgment.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 13 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submission on 16 January 2020.  As we find it appropriate to determine this application on paper, we will proceed to do so.

3.By a Notice of Decision dated 16 June 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 decision and his appeal was dismissed by the Board on 1 March 2018.

5.He filed a Form 86 on 8 March 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge Josiah Lam on 19 August 2019.

6.The applicant filed a Notice of Appeal against the decision of the judge on 27 August 2019.  The hearing of his appeal was vacated as he had failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 19 September 2019.  The appeal was dealt with on paper and was dismissed by the Court of Appeal on 12 December 2019. 

7.The applicant stated in the Notice of Motion that he was not satisfied with the decision of the Court of Appeal and wishes that the Court of Final Appeal will grant leave as he is “a representative of oppressed people”.

8.The submissions he made in writing may be summarized as follows:

(1)  He is in a minority.  The majority in Bangladesh are Muslim and Muslim leaders tortured him much.  They had wanted to kill him many times. He came to Hong Kong to save his life.

(2)  The Director and the Board dismissed his claim.  They did not actually investigate his claim.  If anyone goes to Bangladesh to properly investigate his problem, his claim will not be dismissed.  They just relied on his statement and the Bangladeshi Government’s report.  They never considered his political, economic and educational status.

(3)  The High Court and the Court of Appeal judges merely followed the adjudicator and never considered his points.

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 and submissions are bare assertions without evidence in support and do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. 

11.Contrary to his submissions, it can be seen from the judgments of both the Court of First Instance and the Court of Appeal that the grounds he raised were fully considered by the judges.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal and 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 the application for leave to appeal to the Court of Final Appeal.

The Applicant (Appellant), acting in person