Re Arshad Muhammad

CACV 407/2019

[2021] HKCA 1021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 407 OF 2019

(ON APPEAL FROM HCAL 1661/2018)

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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 10 February 2021, this court (Barma JA and Au JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 17 June 2019 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 filed on 19 February 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. The learned 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 on 25-04-2017, refusing my application for leave for judicial review.

2 The learned judges were wrong as a matter of the law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reason justifying the decision.”

4.The applicant lodged a written submission in support of the application on 2 March 2021.  In the written submission, the applicant submitted that:

(1)     the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases;

(2)     the Board failed to properly assess his credibility; and

(3)     the Board’s decision was Wednesbury unreasonable.

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.In his Notice of Motion, the applicant claimed that this court failed to apply the principles of irrationality and procedural unfairness in its judgment, without giving any particulars or explanation.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.  The applicant’s written submission is directed against the decision of the Board, and identifies no error in our decision.  It therefore takes matters no further.

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

9.For these reasons, the Notice of Motion filed on 19 February 2021 is dismissed.

The applicant acting in person