RE ASHFAQ MUHAMMAD

CACV 465/2020

[2021] HKCA 536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 465 OF 2020

(ON APPEAL FROM HCAL NO. 663 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  On 12 March 2021, this Court (Chu JA and ST Poon J) handed down our judgment[1] refusing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 September 2020.  By that decision, the Judge refused to give him leave to judicially review the decision of the Board dismissing his appeal against the decision of the Director rejecting his non-refoulement claim.  

2.  On 15 March 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted 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.

6.  In the notice of motion, the applicant gave the following as his grounds for seeking leave to appeal to the Court of Final Appeal:

“It is my humble request to you that I have problem in own country. Please give me some time to stay here so that I can solve my problem. At this moment I cannot go back to my home country because danger still there for me. Please allow me to process further my case.”

7.  In the written submission, the applicant complained that the Board ignored many things in his case and that the real situation in his home country was different from what the Board thought.  He also said that he had suffered a lot and his life would further worsen if he were to return to his country.  It was said that he did not have the strength to fight against the police and other authorities, and that it was very difficult to get justice in the corrupt system.  The applicant asked to be allowed to stay in Hong Kong until his problem in his country is resolved.  

8.  The grounds of appeal in the notice of motion and the arguments in the written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal. Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b). 

9.  Further, as pointed out in [14] and [15] of our judgment, assessments of risks of harm, country of origin information and availability of state protection are primarily within the province of the primary decision makers, and the court will not intervene by judicial review unless it can be shown that there are errors of law or irrationality or procedural unfairness in the Board’s decision or the process by which the decision was made. 

10.  Additionally, both in the appeal and in this application, the applicant has not identified any error in the Judge’s decision and reasons.  The applicant has also not identified any error in this Court’s conclusion that there is no merit in his appeal against the Judge’s decision.  His intended appeal to the Court of Final Appeal is therefore unarguable.  

11.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.