Khan Waris v. Torture Claims Appeal Board

CAMP 403/2021

[2022] HKCA 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 403 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1529 OF 2018)

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Before:  Hon Kwan VP and G Lam JA in Court

Date of Written Submission:  30 May 2022

Date of Judgment:  16 September 2022

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J U D G M E N T

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Hon Kwan VP (giving 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 G Lam JA) handed down on 6 May 2022 ([2022] HKCA 606). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 7 May 2021 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim[1].

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 18 May 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 30 May 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper.

3.The applicant is a national of Pakistan. He was arrested for illegally remaining in Hong Kong on 4 October 2009. He submitted a non-refoulement claim on 26 November 2014 on the basis that he would be harmed or killed by the Taliban for refusing to join them.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 31 August 2021[2].

5.On 24 September 2021, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 6 May 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.In the Notice of Motion filed on 18 May 2022, the applicant stated the following as his grounds of appeal:

(1)  There are some errors in the decisions of the Director of Immigration and the Torture Claims Appeal Board. His case has not been determined fairly.

(2)  His life will be in danger if he should return to Pakistan.

7.The applicant’s further contentions in his written submissions may be summarised as follows:

(1)  A litigant should not be deprived of his basic right to understand the content of the process or judgment.

(2)  No assistance has been given to the applicant regarding his BOR 2 risk claim.

(3)  The lack of sound judgment and fairness throughout the non-refoulement claim process is appalling and should not be tolerated. The Court of Appeal should investigate, point out and correct such misbehaviour in the decision of the authorities.

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 submissions concerning the lack of assistance and failure to understand the judgment have been sufficiently dealt with in the Court of Appeal’s decision dated 6 May 2022. He failed to demonstrate that the Court of Appeal is wrong in rejecting his application. The rest of his grounds and submissions are just bare assertions without particulars or evidence in support. Moreover, he 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 give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 18 May 2022.

The Applicant, acting in person