Usman Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 397/2019

[2020] HKCA 173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 397 OF 2019

(ON APPEAL FROM HCAL NO 1194 OF 2018)

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BETWEEN

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Before:  Hon Kwan VP, Chu JA and S T Poon J in Court

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.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 13 December 2019 ([2019] HKCA 1404) dismissing his appeal against the decision of Deputy High Court Judge K W Lung on 20 August 2019 ([2019] HKCFI 2070) 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 23 December 2019 that the applicant shall lodge his written submissions on or before 3 January 2020 and the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the directions or the expiry of the time for taking the steps as directed.  The applicant did not lodge his written submission by the prescribed deadline two months ago or at any subsequent period.  He should be treated to have waived his right to lodge submissions.  We would proceed to determine this application on paper on the basis of the available materials.

3.By a Notice of Decision dated 30 December 2016, 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 11 June 2018.

5.He filed a Form 86 on 25 June 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 K W Lung on 20 August 2019.

6.The applicant filed a Notice of Appeal against the decision of the judge on 29 August 2019.  The appeal was heard on 10 December 2019. It was dismissed by the Court of Appeal on 13 December 2019.

7.The applicant filed a Notice of Motion on 20 December 2019 for leave to appeal to the Court of Final Appeal.

8.The grounds of appeal as stated in the Notice of Motion may be summarized as follows:

(1)  Without proper assistance throughout the appeal, discretion should be granted as it was indeed an error made by the lower authorities.

(2)  The determination has not been officially read to him and therefore he was deprived of the right to make full grounds for appeal.  He could not have understood the determination to the fullest and it is unfair to him.  He had to submit everything in English because the court would not accept grounds written in his own language, otherwise he would have done that.

(3)  He had to ask for help without having the ability to verify if everything is correct and true.  The fact that hearings were arranged with interpreters means that the court recognizes the significance of language assistance and therefore such assistance should extend to understanding the judgment.  This is contrary to the high standard of fairness required by law if this results in deprivation of the right of a litigant to seek further avenues of appeal.

(4)  All the adjudicator did was to ask him what the documentary evidence was about.  This was different from actually understanding and digesting the wordings of the documentary evidence.  What had happened to his cousin in Pakistan was not unrelated but rather evidenced a pattern of events that happened as a result of risk of harm for staying in Pakistan.  The adjudicator should not dismiss the documentary evidence on presumptuous grounds.

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 do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  The Court of Appeal had sufficiently dealt with his grounds in paragraphs 15 to 20 of the judgment dated 13 December 2019.  The applicant 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).

11.We therefore dismiss the application for leave to appeal to the Court of Final Appeal.