RE M BARA ABAIDI IBRAHIM

CACV 290/2019

[2019] HKCA 1395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 290 OF 2019

(ON APPEAL FROM HCAL NO 61 OF 2018)

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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 handed down on 14 October 2019 ([2019] HKCA 1138) dismissing his appeal against the decision of Deputy High Court Judge Bruno Chan on 17 June 2019 ([2019] HKCFI 748) refusing leave to apply for 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 5 November 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant has lodged his written submission on 14 November 2019.  It is appropriate to determine this application on paper accordingly.

3.  By a Notice of Decision dated 18 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.  The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 25 October 2017.

5.  He filed a Form 86 on 11 January 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 17 June 2019.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 27 June 2019.  The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 17 July 2019.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 14 October 2019.  The applicant filed a Notice of Motion on 4 November 2019 for leave to appeal to the Court of Final Appeal.

7.  The applicant stated the following in the Notice of Motion as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] Information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL Information. The Officer and cours [sic] prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable”.

8.  In his written submissions, he submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He also stressed that high standards of fairness are required in the determination of a torture claim as the decision has a significant effect on the applicant’s claim.

9.  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.

10.  The applicant’s grounds of appeal are just bare assertions without substance or evidence in support.  They do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal and 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).

11.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.