SHAHZAD AMIR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 590 /2019

[2020] HKCA 605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 590 OF 2019

(ON APPEAL FROM HCAL NO 711 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 (Kwan VP and Barma JA) handed down on 9 June 2020 ([2020] HKCA 443). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 6 December 2019 ([2019] HKCFI 2509) 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 16 June 2020 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 24 June 2020.  Having considered his submission, we agree it is appropriate to determine this application on paper.

3.  By a Notice of Decision dated 20 July 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 10 April 2018.

5.  He filed a Form 86 on 24 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 6 December 2019.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 20 December 2019.  The appeal was scheduled to be heard by the Court of Appeal on 27 May 2020.  The hearing was vacated as the applicant failed to lodge his skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 9 June 2020.  The applicant filed a Notice of Motion on 15 June 2020 for leave to appeal to the Court of Final Appeal.

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

(1)     The judges were wrong as a matter of law for not applying the principle of irrationality to the decisions made by the Director and the adjudicator;

(2)     The judges were wrong as a matter of law for not applying the principle of procedural unfairness to the decisions whereby the Director and the adjudicator were required to give reasons justifying the decisions;

(3)     He will face hardship if he returns to Pakistan and the Board has significantly relied on the source of news which is not officially recognized or is simply hearsay;

(4)     The judge did not apply the law properly.

8.  In his skeleton argument, the applicant stressed that high standards of fairness are required in the determination of a torture claim and criticized the adjudicator for acting in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

9.  He had not put forward the above grounds in his appeal before the Court of Appeal although he did mention some grounds pertaining to the unfairness of the Director’s decision on that occasion.

10.  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.

11.  The applicant’s grounds were not raised in his previous application for leave to apply for judicial review or in his appeal to the Court of Appeal against the judge’s decision.  There is no good reason why he should be allowed to rely on any of those new arguments at this stage. 

12.  In any event, the applicant’s grounds of appeal and submissions are bare assertions without particulars 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).

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