Ahmed Sattar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 353/2020

[2021] HKCA 1436

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 353 OF 2020

(ON APPEAL FROM HCAL NO 504 OF 2018)

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Before:  Hon Yuen and Au JJA in Court

Date of Written Submissions: 17 March 2021

Date of Judgment:  30 September 2021

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J U D G M E N T

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

1.This court (Hon Lam VP and Yuen JA) handed down judgment on 18 February 2021 ([2021] HKCA 171) (“the Judgment”) dismissing the applicant’s appeal against an order of DHCJ Bruno Chan (“the Judge”) given on 3 August 2020 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.On 11 August 2020, the applicant filed a Notice of Appeal in CACV 353/2020 before this court to appeal the Judge’s Decision.  For reasons set out in the Judgment, the appeal was dismissed. 

3.On 2 March 2021, the applicant filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal on the following grounds:

“I would like to inform Court of Final Appeal. There is some error in law in my decision. Maker just relied on COI information and my previous facts which were faver [sic] on reject my claim. Actual life occur different situation then mentioned COI information. Officer and court prefers to ignore the overwhelming of the evidence of the violence toward a bias and formula approach unlikely fairly access [sic] the danger of my life and clearly calculate to reject my claim”.

4.Pursuant to the directions made by the Registrar of Civil Appeals on 4 March 2021, the applicant was directed to lodge his written submissions on or before 16 March 2021. He did so the following day.  The delay is minimal.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do, we proceeded to determine this application on paper. 

5.In his written submissions, the applicant advanced the following grounds:

(1)  It is unfair that the Judge did not hear his case in person.

(2)  There was a lack of legal representation for his claim on BOR 2 risk[1] before the Director of Immigration (“the Director”).

(3)  The Director’s decision on BOR 2 risk was made without ensuring that he was aware of his rights.  He did not understand the process and the reason for rejecting his claim due to the lack of language assistance and legal representation.  Further, the decision made by the respondent was not interpreted to him up to date.

(4)  The court and the authorities have been negligent and failed to perform a standard duty of care for non-refoulement claimants like him.  He believed that he was not the only one who did not understand English and the court procedures.  As such, he was put in a discriminated and disadvantaged position.

(5)  The respondent was in breach of procedural fairness by (a) unlawfully fettering his discretion in refusing his appeal on the grounds that they did not satisfy the requirement; (b) acting in a procedurally unfair manner in dealing with the appeal and (c) refusing his appeal unreasonably and irrationally in the public law sense or as a result of procedural error or unfairness.

6.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

7.The applicant’s intended appeal has no merit at all.  The first ground in paragraph 5 above was not run before this court in CACV353/2020.  The others have been discussed in the Judgment and no question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

8.Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

9.By reason of the above, the Notice of Motion filed on 2 March 2021 is dismissed.

The applicant, unrepresented, acting in person