Ali Haidar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

CAMP 90/2021

[2022] HKCA 385

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 90 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 600 OF 2018)

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Before: Hon Kwan VP and Barma JA in Court

Date of Written Submission: 19 October 2021

Date of Judgment:  18 March 2022

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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 1393). The Court of Appeal refused to grant extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan dated 24 May 2019 ([2019] HKCFI 1010) 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 6 October 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 19 October 2021.  Having read his written submissions and the papers of this case, we consider it appropriate to determine this application on paper.

3.The applicant is a national of India.  He last arrived in Hong Kong on 18 October 2014 as a visitor and subsequently overstayed.  He was arrested by the police on 10 February 2015.  On 12 February 2015, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor for failing to repay his debt if he returns to India.

4.He took out a summons for extension of time to appeal against the decision of the judge at the court below on 28 September 2020.  His application was dismissed by the judge on 11 March 2021^[1]. 

5.The applicant renewed his application to the Court of Appeal on 18 March 2021.  The application was dismissed by the Court of Appeal on 27 September 2021 because there was no prospect of success in the intended appeal.

Grounds of appeal

6.The grounds of appeal stated in his Notice of Motion may be summarised as follows:

(1)  He does not want to go back to his country because his life is still in danger in his country.

(2)  The judge was wrong in accepting the Board’s finding.  The judge had failed to consider all applicable grounds on non-refoulement claims, in particular, on the grounds of BOR 2 risk.

7.His written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

8.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.

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

10.In any event, the applicant’s grounds are just groundless assertions without particulars and evidence in support.  He failed to demonstrate that the Court of Appeal was wrong in dismissing his application for extension of time to appeal.  In particular, he did not put forward any grounds against the Board’s findings at the court below and it has been well established that the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

11.As the applicant has failed to adduce any evidence to refute the Board’s findings, the judge’s refusal to grant extension of time for him to seek leave to bring judicial review is well founded.

12.Besides, he has not identified 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).

13.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 6 October 2021.

The Applicant, acting in person