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

CAMP 259 /2020

[2022] HKCA 8

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 259 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 2915 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 Au JA) handed down on 13 August 2021 ([2021] HKCA 1151). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 18 October 2019 ([2019] HKCFI 2532) refusing to grant extension of time for the applicant to seek 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 26 August 2021 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 9 September 2021. Having read his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 25 May 2006. He was arrested by the police on 3 February 2008 for indecent assault and remaining illegally. He was subsequently convicted of the offences and sentenced to 16 months’ imprisonment. He raised his torture claim on 18 July 2008 on the basis that he will be harmed or killed by one Abbas, Abbas’s father and/or his gang if the applicant returns to Pakistan as he had hit Abbas with a wicket in a cricket match in 2006.

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 by more than seven months. It was refused by Deputy High Court Judge C P Pang on 17 December 2020^[1].

5.  The applicant renewed his application to the Court of Appeal on 29 December 2020. The application was dismissed by the Court of Appeal on 13 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The grounds of appeal in the Notice of Motion filed on 26 August 2021 may be summarized as follows:

(1)  There is error in law in the decision.

(2)  The decision makers just relied on the Country of Origin information and web news without conducting an investigation into his case.

(3)  His life is in danger in Pakistan.

7.  In his written submissions, he made these further contentions:

(1)  His case has not been determined fairly.

(2)  The authorities should take into account the real procedural unfairness throughout the case and put aside the public policy of trying to dispose of non-refoulement claims as quickly as possible.

(3)  The judges erred in determining that the judge had not failed to appreciate the significance of his non-refoulement claim. The lack of assistance provided to the applicant is an error of law or procedural unfairness, or failure to adhere to high standard of fairness. Non-refoulement claims are life and limb cases and should be assessed with caution, taking into account his vulnerability and disadvantage.

(4)  Prospect of success should not be determined by the judges at this stage as the applicant has been deprived of the opportunity to make a full appeal and to put forward his grounds fairly, without language assistance.

(5)  The discriminatory act of the authorities towards non-refoulement claimants in the quick disposal of non-refoulement cases is unacceptable and is detrimental to the spirit of the judicial system.

(6)  Without knowing thoroughly how his case was determined, it is not easy for him to appeal against the decision. There should be a proper and fair mechanism that allows unrepresented litigants to understand more about their claims.

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 contention that there is some error in law in the decision is just a bare assertion without particulars or elaboration. The rest of the applicant’s grounds and submissions are substantially the same as those raised in his previous applications before the Court of First Instance or the Court of Appeal. The Court of Appeal has sufficiently dealt with his grounds in the judgment dated 13 August 2021. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing the application.

10.  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).

11.  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 26 August 2021.