AS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 52/2020, [2025] HKCA 134

On Appeal From [2023] HKCA 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 52 OF 2020

(ON APPEAL FROM HCAL 1007 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  On 28 July 2023, the applicant filed a Notice of Motion out of time to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 29 May 2023 (“the Judgment”)  ([2023] HKCA 693).  In the Judgment, we dismissed the applicant’s appeal against the decision of Chow J (as he then was)  (“the Judge”)  dated 26 November 2019, by which the Judge dismissed his application for judicial review ([2019] HKCFI 2871).

2.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal if 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.

4.  Further, pursuant to section 24(2)  of the HKCFAO, the application should be made within 28 days from the date of the judgment to be appealed from.  Thus, the deadline for the applicant to seek leave to appeal to the Court of Final Appeal against the Judgment fell on 26 June 2023.  Accordingly, the applicant was over a month late in taking out his application for leave to appeal to the Court of Final Appeal.

5.  In his Notice of Motion, the applicant only stated “I will provide the legal grounds latter in two/three weeks time” (sic).

6.  Pursuant to Practice Direction 2.1, the applicant should within 14 days of the filing of the application lodge with the court two sets of written submissions in support of his Notice of Motion.  No written submissions was lodged by the applicant before the deadline.

7.  On 11 January 2024, the Registrar of Civil Appeals directed the applicant’s then legal representatives Messrs Daly & Associates (“the Firm”)  to clarify in writing whether they were still representing the applicant, and that the applicant should lodge his written submissions by 4pm on 26 January 2024. 

8.  On 19 January 2024, a Notice of Discharge of Legal Aid Certificate was filed and the Firm confirmed that they had no instructions to act for the applicant.

9.  On 26 January 2024, the applicant lodged his written submissions with the help of a non-governmental organisation who provided a Somali interpreter for him.  In essence, he submitted that this court erred in not disturbing the Board’s ruling on the availability of internal relocation to Mogadishu in the present case as:

(1)  The Board erred by engaging in speculative or illogical reasoning regarding the viability of internal relocation without regard for the evidence, with respect to (a)  the applicant’s ability to find and contact his aunt and uncle; and (b)  the ability and willingness of the applicant’s uncle and aunt to provide adequate financial support for the applicant to establish elsewhere in Somalia.

(2)  Pursuant to the above, the conclusion that in any event, internal relocation to Mogadishu would be a reasonable option for the applicant, was also Wednesbury unreasonable.

10.  At the outset, his delay of over a month in taking out this application is substantial and he has failed to give any reason, let alone good reason, to explain his delay.

11.  Moreover, his intended grounds of appeal are plainly devoid of merits.  The applicant’s lengthy submissions essentially boil down to his disagreement with the Board’s rejection of his own evidence and case.  He complained that in finding he would be able to contact his family and his family would provide support to him, the Board erred in concluding that he would be able to relocate internally within Somalia.

12.  These are not valid or meritorious grounds of appeal, as his complaints only focus on the Board’s Decision without identifying any specific error in the Judgment.  Further, his submissions are in effect a rerun of his arguments advanced before us which have been thoroughly considered and rejected by this court, as we have explained at [42] ‑ [46] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re‑arguing the points which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].

13.  In any event, even taking his case at its highest, his allegations remain fact-specific and do not relate to any question of great general or public importance.

14.  The applicant has therefore failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

15.  For these reasons, the applicant’s intended appeal has no merit and it will be futile to grant him extension of time to pursue a hopeless appeal.  The Notice of Motion filed on 28 July 2023 is hereby dismissed.