Mahmood Khalid and Another v. Torture Claims Appeal Board

CACV 272/2024, [2025] HKCA 350

On Appeal From [2024] HKCFI 1661

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 272 OF 2024

(ON APPEAL FROM HCAL NO 662 OF 2022)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.On 25 June 2024, Deputy High Court Judge Bruno Chan made an order refusing to grant to the Applicants leave to apply for judicial review (“the Order”). The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 24 June 2022, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration dated 22 August 2018 rejecting their non-refoulement claims.

2.On 25 November 2024, the Court dismissed the 1^st Applicant’s appeal against the Order by reason of his failure to comply with an unless order of the Court concerning the lodgement of appeal bundles.

3.On 13 March 2025, the Court gave its judgment (“the CA Judgment”) dismissing the 2^nd Applicant’s appeal against the Order. The basic facts of this case and the Court’s reasons for dismissing the 2^nd Applicant’s appeal have been set out in the CA Judgment and will not be repeated here.

4.By a Notice of Motion dated 24 March 2025, the 1^st Applicant on behalf of the 2^nd Applicant applies for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the 1^st Applicant states that he does not agree with the CA Judgment because his problem is real.

5.Pausing here, it is not entirely clear whether the 1^st Applicant intends, by the Notice of Motion, to apply for leave to appeal also on his own behalf. However, since the CA Judgment does not relate to him, it is plain that no leave to appeal against the CA Judgment should be granted to the 1^st Applicant under the Notice of Motion.

6.The written submissions dated 7 April 2025 lodged in support of the application set out some personal background information relating to the 1^st Applicant, and repeats the factual basis of his non-refoulement claim.

7.Pursuant to paragraph 3 of Practice Direction 2.1, we determine the present application for leave to appeal on paper without an oral hearing.

8.Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter 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.No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion. We are unable to see any such question being involved in the intended appeal. Neither the Notice of Motion nor the written submissions identify any error in the CA Judgment, or raise any viable ground of appeal against the CA Judgment. We are satisfied that the intended appeal has no reasonable prospect of success.

10.There is also no basis to grant leave to appeal on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

11.Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.

12.For the avoidance of doubt, we shall treat the non-compliance with Order 80, Rule 2 of the Rules of High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.

The Applicants, acting in person