Re Ali Bilal Alias Babar Ashraf

CACV430/2020

[2021] HKCA 955

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 430 OF 2020

(ON APPEAL FROM HCAL 855/2018)

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Before:  Hon Barma JA and ST Poon J in Court

Date of Judgment:  13 July 2021

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.On 15 March 2021, this court (Barma JA and ST Poon J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge CP Pang (“the judge”)  on 24 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 25 March 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. My application for Notice of Appeal, against the Decision of my leave for judicial review. The Honourable Judges didn’t consider that the lower assessment of my claim, assessed by the [Board] and the Director failed to consider my fear, that I would face to my country if I return to my country. The [Board] and the Directors did not focus my risk, which I would like to request for re-assessed under BOR 3 and BOR 2 risk, my life would be at danger upon refoulement.”

4.The applicant lodged a written submission in support of the application on 7 April 2021.  In the written submission, the applicant submitted that:

“… 2. Failing to take into account relevant considerations/taking into account irrelevant Consideration. When assessing a non refoulement claim the Decision makers must pay due regard the applicable rules of law, having regard to all relevant matters and not to have regard to irrelevant matters. It is submitted that the TCAB and the Director failed to take into account and / or give proper weight to relevant considerations and materials which he should have, and hence his decision is illegal. Specially, both failed to give due regard to:

a)  the fact is the Honourable judges support the TCAB Decision was improper, because they did not follow the high standard fairness for provide opportunity for my claim.

b)  the fact is My Claim is based on a true story of my life, the Decision maker didn’t observe my fear so well, may be my risk is private and personal dispute but my life would be too risk if I return to my country.

3.  In the Judgment of my Notice of Appeal the honourable Judges stated that there are no merit in my claim which can prove that I would not face real risk if I return to my country.  Its appear to me that my claim is not a private and personal matter but the Decision maker did not observe my fear properly…”

5.Having considered the applicant’s Notice of Motion and written submission, 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 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.  

7.None of the grounds advanced in the application for leave to appeal to the Court of Final Appeal against the decisions of the Board and the Director was advanced before the judge.  As we have explained in [15] of our judgment, it is not open to the applicant to raise these matters on appeal, still less on an application for leave to appeal to the Court of Final Appeal, for the first time, well outside the time limit for bringing judicial review proceedings.  In any event, those grounds lacked particulars and are bound to fail.

8.The applicant also claimed that this court should not follow the decisions by the Board and the Director because they failed to properly assess his claim and they wrongly held that his claim was a private and personal matter.  We note that the Board dismissed his claim primarily because of the lack of credibility in his claim and the judge has held that there was no public law error in the Board’s Decision.  In our view, this ground is not reasonably arguable before the Court of Final Appeal.

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

10.For these reasons, the Notice of Motion dated 25 March 2021 is dismissed.

The applicant acting in person