Awal Abdul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 247/2020

[2021] HKCA 831

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 247 OF 2020

(ON APPEAL FROM HCAL NO 1793 OF 2018)

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BETWEEN

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Before: Hon Kwan VP, E Toh and G Lam JJ in Court

Date of Written Submissions: 9 April 2021

Date of Judgment: 4 June 2021

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J U D G M E N T

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Hon G Lam J (giving Judgment of the Court):

1.This is the applicant’s application by Notice of Motion filed on 29 March 2021 for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment of this Court handed down on 8 January 2021 ([2021] HKCA 41). In that judgment, this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 30 June 2020 ([2020] HKCFI 1369) which had in turn dismissed the applicant’s application for leave to apply for judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, having considered the Notice of Motion, the applicant’s affirmation filed on 29 March 2021 and the written submissions lodged by the applicant on 9 April 2021, we consider that it is appropriate to determine this application on paper.

3.The applicant stated the following as his grounds in the Notice of Motion:

“ I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

4.In his written submission, the applicant set out certain passages from various authorities regarding the high standards of fairness required in the determination of a torture claim and regarding the principles on Wednesbury unreasonableness, and submitted that the Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

5.Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484), an application for leave to appeal to the CFA shall be filed within 28 days from the date of the judgment to be appealed from.  Section 22(1)(b) provides that an appeal shall lie to the CFA at the discretion of the Court of Appeal or the CFA, 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 CFA, 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 CFA for decision.

6.In the present application, the applicant was many weeks late in filing the Notice of Motion.  He explained in his affirmation that he was late in filing the notice of motion because he did not receive the judgment within the time stipulated for appeal.  In fact, at the hearing on 5 January 2021, this Court had already informed the applicant that judgment would be handed down on 8 January 2021.  Although the applicant did not come to court to obtain the judgment, the judgment was sent to him by registered post on 11 January 2021 to his address verified at the hearing.  In these circumstances, the explanation given by the applicant cannot justify the delay.

7.In any event, the applicant has not shown any valid ground for his application for leave to appeal.  His grounds and submissions are evidently simply bare assertions without particulars or reasoning in support.  He has failed to demonstrate that this Court erred in dismissing his appeal.  Nor has he identified any question of great general or public importance. There is also no basis for granting leave on the “or otherwise” limb under section 22(1)(b).

8.For these reasons, the Notice of Motion is dismissed.

The Applicant, unrepresented, made written submissions in person