Md Akbar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

CAMP 60/2020

[2020] HKCA 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 60 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 1767 OF 2018)

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

Date of Judgment: 11 December 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Chu JA) handed down on 30 October 2020^[1] refusing to grant leave to appeal out of time against the decision of Deputy High Court Judge K W Lung dismissing his application for leave to apply for judicial review concerning his non‑refoulement claim^[2]. The applicant is a national of India. His claim was made on the basis that he would be ill-treated by his creditor if he were to be returned to India. He filed the Notice of Motion on 12 November 2020.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 16 November 2020 that the applicant should lodge written submissions in support of his Notice of Motion on or before 26 November 2020 and that the application shall be determined on paper only without an oral hearing upon compliance with the direction or the expiry of the time for the compliance of the direction.  The applicant did not lodge any written submission as directed.  As the time for compliance with the said direction has expired, the Court of Appeal will determine this application on paper accordingly.

3.The applicant took out a summons in the court below to seek an extension of time to appeal against the decision of DHCJ K W Lung and for leave to advance new ground of appeal.  His application was late by nearly one month.  It was refused by the judge on 12 June 2020^[3].  The applicant renewed his application to the Court of Appeal for extension of time to appeal on 22 June 2020.

4.On 30 October 2020, the Court of Appeal refused to extend time to appeal against the decision of DHCJ K W Lung because of the lack of merits of the intended appeal.

5.In the Notice of Motion filed on 12 November 2020, the applicant stated his grounds of appeal as follows:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration in refusing his application for judicial review.

(2)  There is some error in law in his decision.  The decision maker just relied on country of origin information (“COI”) and his previous facts in rejecting his claim.

(3)  Actual life occurs in a situation different from the COI. Officers and courts prefer to ignore the overwhelming evidence of the violence towards minorities in searching for unrealistic silver lining.

(4)  The judges did not apply the law properly.

6.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.

7.The applicant has not provided any particulars or elaborations for his grounds of appeal.  His grounds are just bare assertions without evidence in support and are unmeritorious.  In particular, he has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his application.  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).

8.For the above reasons, we dismiss the Notice of Motion filed on 12 November 2020 and refuse to grant leave to appeal to the Court of Final Appeal.

The Applicant, acting in person.