Ayub Muhammad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 110 /2021

[2022] HKCA 312

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 110 OF 2021

(ON APPEAL FROM HCAL NO 1241 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down the Judgment of the Court):

1.This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Barma JA) handed down on 27 September 2021 ([2021] HKCA 1376). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge K W Lung dated 8 March 2021 ([2021] HKCFI 541) refusing to grant extension of time for the applicant to apply for leave to seek judicial review concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 7 October 2021 that the applicant shall lodge written submissions not exceeding 10 pages on or before 21 October 2021. It was further directed that the Notice of Motion shall be determined on paper only without an oral hearing upon compliance with the said direction or the expiry of the time for complying with the direction. The applicant lodged written submissions of 26 pages which substantially exceed the prescribed limit. The Registrar of Civil Appeals directed on 25 October 2021 that the said written submissions would not be considered by the court and made an unless order requiring the applicant to lodge written submissions in compliance with the court’s directions on or before 8 November 2021, failing which he will be considered to have abandoned his right to rely on written submissions. The applicant has not lodged written submissions as directed by the unless order. He is deemed to have abandoned his right to rely on written submissions. Having considered the papers of this case, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of Pakistan. He had previously been repatriated to Pakistan in 1995. He was arrested in Hong Kong again on 22 September 2015. He claimed that he left Pakistan for China in November or December 2011 and subsequently entered Hong Kong by boat illegally. He lodged his non-refoulement claim on 12 November 2015 on the basis that he will be harmed or killed by members of the Pakistan Muslim League if he returns to Pakistan.

4.He filed a Form 86 out of time on 3 July 2018 to seek leave to apply for judicial review against the decision of the Board. DHCJ K W Lung refused to grant extension of time for him to take out the application and dismissed the leave application on 8 March 2021.

5.On 19 March 2021, the applicant filed a notice of appeal against the judge’s decision. He consented to the disposal of his appeal on paper. The appeal was considered by the Court of Appeal on paper and dismissed on 27 September 2021.  The applicant filed a Notice of Motion on 7 October 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

6.In the Notice of Motion, the applicant stated the following as his grounds of appeal:

“There is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor on reject my claims. Actual life occur diffrent [sic] situation the mentioned COI Information. Immigration officer and Hong Kong High Court’s prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach [sic] unlikely fairly access the danger of my life and clearly calcute [sic] to reject my claims. Also I am requested to court I don’t have legal represented could you please provide me and consider my real situation and safe my life’s as a human being”.

Analysis and disposition

7.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 at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

8.The applicant’s grounds in the present application were not previously raised in the leave application before the Court of First Instance or in the appeal before the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings.

9.In any event, his grounds are just bare assertions without particulars, elaboration or evidence in support. He has not demonstrated that the Court of Appeal was wrong in its decision. Besides, the applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 7 October 2021.

The Applicant (Appellant), acting in person