Sanyang Omar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 415/2020

[2021] HKCA 829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 415 OF 2020

(ON APPEAL FROM HCAL NO 1877 OF 2018)

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BETWEEN

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Before: Hon Barma, Au JJA and S T Poon J in Court

Date of Written Submission: 29 April 2021

Date of Judgment: 17 June 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.On 17 March 2021, this court (Barma JA and S T Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 19 August 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

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

3.The applicant subsequently applied, by a notice of motion dated 16 April 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I am late for apply due to lack of knowledge and insufficient sources. Please accept my filing application. So that I can process my case further. I hope I will get your favour.”

4.In the affirmation filed on 16 April 2021, the applicant reiterated the matters raised in the Notice of Motion.

5.Having considered the applicant’s notice of motion and written submission filed on 29 April 2021, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.The applicant claimed that he was late in bringing the application due to his lack of knowledge.  Ignorance of the law on the part of the applicant is not a reasonable excuse for the delay. Nonetheless, as the delay was relatively short, we will consider the merits of the intended appeal.

7.The matters stated by the applicant do not constitute grounds for granting leave to appeal to 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, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

8.The only ground of appeal advanced by the applicant in his written submission is that it is unsafe for him to return to The Gambia.  He did not identify any error in our decision.  He has therefore failed to advance any viable ground of application.

9.As we have often stated, in an appeal, it is necessary to identify errors in the judgment to be appealed against, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  

10.As for the bare assertion by the applicant in his written submission that it is unsafe for him to return, this is not itself a valid ground of appeal. 

11.In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

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

13.For these reasons, the notice of motion dated 16 April 2021 is dismissed.

The applicant acting in person