Hossain Zafar v. Torture Claims Appeal Board

CAMP 556/2021

[2022] HKCA 1383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 556 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1099 OF 2018)

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Before:  Hon Kwan VP and Cheung JA in Court

Date of Written Submission:  6 June 2022

Date of Judgment:  22 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 Cheung JA) handed down on 20 May 2022 ([2022] HKCA 666). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 31 May 2021 ([2021] HKCFI 1554) refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2.Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 24 May 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 6 June 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.The applicant is a national of India. He came to Hong Kong as a visitor on 17 April 2016 and subsequently overstayed. He surrendered to the Immigration Department on 9 May 2016. He lodged his non-refoulement claim on 11 and 25 July 2016 on the basis he would be harmed or killed by a rival political party of the All India Trinamool Congress.

4.He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for 2 days. It was refused by the judge on 1 December 2021[1].

5.The applicant renewed his application to the Court of Appeal on 10 December 2021. The application was dismissed on 20 May 2022 because there is no prospect of success in the intended appeal.

Grounds of appeal

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

(1)  The applicant does not want to return to his country because his life is still in danger and he will face hardship in his country.

(2)  The judge failed to consider all applicable grounds of non-refoulement claims, in particular, on the ground of risk of violation of articles 2 and 22 of the Hong Kong Bill of Rights Ordinance (Cap 383)[2].

(3)  The judge was irrational in finding that the adjudicator’s decision is without fault.

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

(1)  As the decision has a significant effect on the applicant’s torture claim, 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 and submissions in the present application are substantially similar to the ones raised in his previous application before the Court of Appeal. The Court of Appeal has sufficiently dealt with his grounds and given reasons for rejecting them in the decision dated 20 May 2022. We have dealt with BOR 2 risk in our judgment. The complaint about risk of violation of article 22 of BOR has not been raised before. In any event, we do not think this article is engaged. The applicant has failed to demonstrate that the Court of Appeal was wrong in dismissing his application. 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).

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 24 May 2022.

The Applicant, acting in person