Re Imran

CACV 500/2019

[2020] HKCA 538

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 500 OF 2019

(ON APPEAL FROM HCAL NO. 503 of 2018)

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JUDGMENT

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Hon Alex Lee J (giving the Judgment of the Court):

1.On 3 June 2020, this Court (Kwan VP and Alex Lee J) handed down a judgment[1] (“the Judgement”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 October 2019[2] refusing him leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim.  

2.The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in the Judgment.  We shall not repeat them here.

3.By a Notice of Motion filed on 15 June 2020, the applicant applies for leave to appeal against the Judgement to the Court of Final Appeal.  The applicant has also lodged written submission in support of his application. 

4.Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of his Notice of Motion and written submission.  

5.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.

6.The Notice of Motion states:

“On 3 June 2020 the Honourable Judges of the Court of Appeal cancel my leave to apply for judicial review. I do not agree with that judgement but I have no way to appeal except the Court of Final Appeal.”

7.In his written submission, the applicant insists that there is political problem in Pakistan and that he would be killed if he returns there.  He also says that he wants to be a Hong Kong resident and he has married a Hong Kong woman and is waiting for a visa which the Immigration Department is processing for him.  He says that before he gets his visa his status is an asylum seeker. 

8.In the Judgment, we pointed out at [10] that the Board found that the applicant will not face any appreciable risk of being harmed by the criminals and/or land mafias even if he is to return to his home area of Pakistan.  Moreover, the Board considered that the applicant could escape from the risk, if any, by internal relocation within Pakistan.  At [8], we pointed out that the Judge noted that even on the applicant’s own case his alleged risk was confined to local land mafias or criminals in his home district only. The Judge held that there is no error of law or procedural unfairness in the Board’s decision, nor is there any failure on its part to apply high standards of fairness.  At [11], we pointed out that the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  Then at [12], we pointed out that in determining an appeal, the Court of Appeal would focus on the decision of the Judge and would only reverse that decision if it could be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

9.In the Notice of Motion, the applicant, apart from saying that he disagrees with our judgment, has not set out in any particular respect how this court was wrong in law or had failed to apply the law properly.  

10.All the matters stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has not identified any question of great general or public importance, as required by section 22(1)(b). 

11.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.For the above reasons, the statutory requirements for giving leave to appeal are not met. Accordingly, we dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.