Re Khan Md Al Amin

CACV 18/2020

[2020] HKCA 780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 18 OF 2020

(ON APPEAL FROM HCAL NO 1555 OF 2018)

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Before:  Hon Chu JA, S T Poon and Marlene Ng JJ in Court

Date of Judgment:  29 September 2020

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

I. INTRODUCTION

1.On 17 August 2020, this court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 3 January 2020 in HCAL 1555/2018 refusing leave to the applicant to apply for judicial review. The applicant sought to review the decision of the Director of Immigration (“the Director”) and the decision of the Torture Claims Appeal Board (“the Board”) that rejected his non-refoulement claim.

2.The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in our judgment.[1] We shall not repeat them here.

3.On 25 August 2020, the applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal. The applicant stated in the Notice of Motion that:

“Dear Sir/Madam,

With due respect I want to inform you that I couldn’t accept the decision made on 17 August 2020 by Judge, because there are some incorrect informations which are used by the court to make this decision. Decision maker relied just a simple hearsay. The Judge didn’t verify all the matters which I gave the court in previous time. This Decision make me irritational of my life and disappointed me about my life security. This decision was unfair and reflected my claims. Other grounds is written on the Annex-A.

Annex-A, 2 pages

Grounds upon which leave to appeal is sought

(i) ‘High standards of fairness’ are required in determination of a torture claims on the part of the decision maker. But the learn Judge reviewed the matter lightly.

(ii) The learn Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration and the Adjudicator of the Torture Claims Appeal Board.

(iii) The decision has the effect of finally dispossing of the applicant’s torture claim and making him liable to be removed from Hong Kong. This entail is real and significant implications for the applicant’s substantive right not to be subject to torture and his right to Non-refoulement protection. In the other words, the decision has a significant effect on the applicant’s torture claims.

(iv) The learned Judge may not analyzed the applicant’s claims properly in his home country.

(v) The learned Judge’s decision to refuse the applicant’s appeal was unreasonable.

(vi) The learned Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director of Immigration whereby the Director of Immigration and the Adjudicator of the Torture Claims Appeal Board was required to give reasons justifying the decision.

(vii) In spite of the applicant’s problems are very severe in his home country and the applicant has submitted all the proofs on behalf of applicant’s torture claim but the learned Judge may not be greater care and disappointed the applicant.

(viii) It must be keep in mind that the life and limb are in jeopardy and the applicant’s fundamental human right not to be subjected to torture is involved, which is the high standards of fairness are required.

(ix) Conclusion:- If the applicant return back to his home country he will be killed by his enemy, because his problem is still going on.”

4.Notwithstanding the acknowledgment by the applicant on 25 August 2020 of the requirement under Practice Direction 2.1 and also despite the directions by the Registrar of Civil Appeals dated 26 August 2020, the applicant did not lodge any written submissions as required under paragraph 3 of such Practice Direction and under the directions by the Registrar of Civil Appeals.

5.Pursuant to the directions by the Registrar of Civil Appeals dated 26 August 2020, the Notice of Motion shall be determined on paper without an oral hearing unless the court otherwise directs. Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determining this kind of application on papers based on materials already before us.

6.The matters stated by the applicant in the Notice of Motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484 provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine. Nor is any such question apparent to us from the matters he has raised.

7.It is clear from Re Moshin Ali[2] that the decision of the Director is not susceptible to judicial review as the applicant has appealed/ petitioned to the Board from such decision.

8.The applicant’s Notice of Motion mirrored his Notice of Appeal filed on 13 January 2020 and his written submissions lodged on 6 July 2020 for the purpose of the appeal against the decision of the Judge given on 3 January 2020. We have already considered the grounds raised in the applicant’s Notice of Appeal filed on 13 January 2020 and his written submissions lodged on 6 July 2020 in [13]-[14] of our judgment. The grounds raised in the applicant’s Notice of Motion are basically a repetition of the grounds of appeal and arguments relied on by the applicant in his appeal to this court. Such grounds and arguments by the applicant have already been dealt with by this court in [17]-[27] of our judgment.

9.The applicant has not raised any reasonably arguable ground for seeking leave to appeal. The applicant did not identify any specific matter we have overlooked or any specific matter we relied on that was incorrect, and the assertion by the applicant that our judgment was unfair or unreasonable does not identify any error and is not a viable ground of appeal.

10.In our view, the matters raised in the Notice of Motion do not raise any great general or public importance. The applicant’s grounds for leave to appeal are unarguable. We do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b). For these reasons, we refuse to grant leave to appeal to the Court of Final Appeal.

11.The Notice of Motion filed on 25 August 2020 is therefore dismissed.

The applicant acting in person