Re Ijaz Muhammad

CACV 368/2019

[2020] HKCA 568

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 368 OF 2019

(ON APPEAL FROM HCAL 659 OF 2018)

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Before:  Hon Barma JA, Wong and Lisa Wong JJ in Court

Date of Written Submission:  9 June 2020

Date of Judgment:  15 July 2020

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J U D G M E N T

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Hon Wong J (giving the judgment of the court):

1.This Court (Barma JA, Wong and Lisa Wong JJ) gave Judgment on 3 January 2020 dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 2 August 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 subsequently applied, by a Notice of Motion dated 22 January 2020, for leave to appeal to the Court of Final Appeal.  On 10 March 2020, the Registrar of Civil Appeals directed the applicant to lodge written submissions by 24 March 2020 and that if there is written submission in opposition by the party / parties who has / have been served with the Notice of Motion it be filed within 14 days after having been served with the submission.

3.The applicant did not file submission by 24 March 2020.  By an order of the court dated 23 May 2020, the deadline for filing of submission was extended to 10 June 2020.

4.The applicant filed a written submission on 9 June 2020.  The Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) indicated that it would take a neutral stance and did not file any submission.  The Director of Immigration (“the Director”) did not make a response.

5.The Registrar had in the first mentioned direction also directed that the Notice of Motion shall be determined on paper only without an oral hearing.  Having perused the papers, we agree it is appropriate to determine this application on paper.

6.The applicant is not legally represented.  From his Notice of Motion and submission, we endeavour to comprehend the grounds he put forward and summarise them as follows:

(1)  The Director, the Board and the Judge failed in their consideration to take into account the following matters:

(a)  The provisions in section 5 of the Hong Kong Bill of Rights Ordinance[1] (“HKBORO”) which incorporated relevant provisions in the International Covenant on Civil and Political Rights;

(b)  Articles 2 and 3 of the Bill of Rights[2] (“BOR”);

(c)  Articles 28, 38, 39, 41 and 48 of the Basic Law; and

(d)  Articles 1 - 3 and 16 of the United Nations Convention Against Torture (“CAT”);

(2)  Failure to call for and consider medical and psychological reports;

(3)  The decisions are unreasonable in the Wednesbury[3] sense;

(4)  Failure to comply with high standards of fairness;

(5)  The Board erred in its approach in not treating the appeal as a rehearing;

(6)  The Board failed to consider adequately matters such as the country conditions of the applicant’s country of origin; and

(7)  Failure to comply with the minimum standards of procedural fairness required in decision-making process.

7.Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance[4], leave to appeal to the Court of Final Appeal is granted if the question involves in the appeal is of great general or public importance or otherwise ought to be submitted to the Court of Final Appeal for decision.

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

9.Further, it does not seem to us that there is any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

10.In any event, none of the points raised by the applicant are reasonably arguable.

11.Point (1)(a) relates to section 5 of the HKBORO which provides for measures to be taken to derogate protected rights in time of certain public emergency. This provision was not engaged at any stage in the present claim for non-refoulement.

12.Point (1)(b) relates to Articles 2 and 3 of the BOR which concern respectively right to life, and prohibition of torture, cruel, inhuman or degradation treatment or punishment.  These matters had been duly considered by the Director, the Board and the Judge.  The Judge did not find any error of law, procedural unfairness or irrationality in the decision of the Board.

13.The provisions in the Basic Law cited by the applicant (point (1)(c)) are not applicable to him as he is not a Hong Kong resident as defined by Article 24.

14.Citing of the provisions in the CAT (point (1)(d)) does not enhance this application.  There is no indication that the applicant’s claim had not been duly considered under the CAT.

15.Point (2) was raised before the Judge but it was confined to the complaint that no psychological nor psychiatric report had been obtained.  Point (3) - (7) concern matters which had also been raised before the Judge.  The judge demonstrated that he had considered all the matters raised.  His judgment was that there was no error of law, procedural unfairness or irrationality.  We found no fault in his consideration and decision.  In particular, we do not agree that the Board had erred in its approach or had failed to consider matters such as Country of Origin Information.

16.The Judge rightly noted that the claim of the applicant had been rejected mainly based on adverse finding of his credibility. The overall observation of the Judge was that the applicant’s case is not reasonably arguable and there is no realistic prospect of success in an application for judicial review.  We did not discern any mistake in the decision made by the Judge.

17.In the circumstances, we do not find any basis for granting leave to appeal to the Court of Final Appeal.

18.By virtue of the above, the Notice of Motion dated 22 January 2020 is dismissed.

The applicant, unrepresented, acted in person