Ashiq Hussain v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 406/2020

[2021] HKCA 922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 406 OF 2020

(ON APPEAL FROM HCAL 1128/2017)

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BETWEEN

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Before:  Hon Lam VP, Barma and Au JJA in Court

Date of Written Submissions:  31 May 2021

Date of Judgment:  5 July 2021

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.On 17 May 2021, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 3 May 2021. In that judgment we struck out the Notice of Appeal and dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”)  on 10 July 2020 granting leave to the Applicant to withdraw his summons of 19 May 2020. By that summons, he sought leave to appeal against a consent order of 20 September 2019 (setting aside leave to apply for judicial review). We also ordered the Applicant to pay costs of $12,000 to the Director of Immigration.

2.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 (“CFA”)  at the discretion of this Court or the CFA 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 CFA for decision.

3.In the Notice of Motion, the Applicant alleged that during a recess of the hearing of his 19 May 2020 summons, the interpreter misled him that his case had been re-opened and he therefore withdrew his allegation concerning his previous lawyers (who had consented to the setting aside of leave on 20 September 2019 on his behalf).

4.Such allegation had not been raised before and it is not supported by any evidence.  His affirmation of 17 May 2021 did not provide any evidence in respect of such allegation.

5.Nor did he provide any explanation why such allegation had not been raised before.

6.According to the court record regarding the hearing on 10 July 2020, the judge explained to the Applicant that he needed to file affirmation to set out his allegation against his former solicitor that the consent summons previously filed on his behalf had not been approved by him.  After that, he was given time to consider.  After the break, the judge again enquired with him as to the course he would take.  He then informed the judge that he would withdraw his application.

7.There was simply nothing to support his assertion in the Notice of Motion that he thought that his case had been re-opened.

8.In the absence of credible evidence to support his bare allegation that he had been misled by the interpreter at the hearing of 10 July 2020, we do not think it is appropriate for this Court to entertain such assertion at this stage.

9.In the Applicant’s written submissions of 31 May 2021, he only referred to matters on his substantive non-refoulement claim without addressing the consent order of 20 September 2019 and his withdrawal of the summons of 19 May 2020 before the judge at the hearing of 10 July 2020.

10.The Applicant’s submissions fail to engage with the reasons given in our judgment of 3 May 2021 for dismissing his appeal.  In our judgment, the applicant did not raise any discernible or arguable ground for disturbing this Court’s judgment. 

11.In the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

12.For these reasons, we refuse to grant leave to appeal to the CFA and dismiss the Applicant’s Notice of Motion accordingly.

The applicant acting in person