Case Document

100%Judiciary

CACV 154/2020

[2021] HKCA 1885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 154 OF 2020

(ON APPEAL FROM HCAL 1368/2018)

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RE:

RAFIQ REHMAN

Applicant

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Before: Hon Chu JA and Barma JA in Court

Date of Judgment: 17 December 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 30 April 2021, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 27 May 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 filed on 10 May 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 refusing my application for Judicial Review.

2. There is some error in law in my decision. The decision maker just relied on COL information and my previous facts, which were favor on rejecting my claim.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

4.The applicant lodged a written submission in support of the application on 7 June 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.The applicant claimed that this court failed to apply the principle of irrationality to the Director’s Decision but the applicant did not give any particulars for this ground. In our view, this ground is not reasonably arguable before the Court of Final Appeal. As for the other grounds advanced by the applicant in the Notice of Motion and written submissions, they do not identify any supposed error in our judgment and they are thus not viable grounds for an application for leave to appeal to the Court of Final Appeal.

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 dated 10 May 2021 is dismissed.