ISLAM SAIFUL ALIAS RANA v. TORTURE CLAIMS APPEAL BOARD

CAMP 58 /2019

[2019] HKCA 909

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 58 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 942 OF 2017)

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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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 July 2019 ([2019] HKCA 748), dismissing his application for leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  By a Notice of Decision dated 24 June 2016 and a Notice of Further Decision dated 4 May 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3.  The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decisions.  His appeal was dismissed by the Board on 26 October 2017.

4.  He filed a Form 86 on 23 November 2017 to seek leave to apply for judicial review against the decision of the Board and his application was refused by the judge on 29 June 2018. 

5.  The applicant applied for leave to appeal against the judge’s decision out of time.  His application was refused by the judge on 2 April 2019 as there is no prospect of success in the intended appeal.

6.  The applicant filed a renewed application with the Court of Appeal for leave to appeal against the decision of the judge out of time.  It was dismissed by the Court of Appeal on 8 July 2019 as there is no reasonable prospect of success in the intended appeal.

7.  By a Notice of Motion^[1] filed on 9 July 2019, the applicant applied for leave to appeal to the Court of Final Appeal.  He stated his grounds of appeal in the Notice of Motion as follows:

“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. Actual 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.  The applicant lodged his written submission on 19 July 2019.  He submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility and stressed that high standards of fairness are required in the determination of a torture claim because of the gravity of what is at stake.

9.  The Registrar of Civil Appeals had directed on 11 July 2019 that the Notice of Motion shall be determined on paper only without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.  We think it is appropriate to do so and will determine this application on paper.

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 of appeal do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  His submissions are bare assertions without substance.  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).

12.  For the above reasons, we dismiss his application for leave to appeal to the Court of Final Appeal.