RE AHMED MUSHTAQ

CAMP 43/2020

[2021] HKCA 1054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 43 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 100 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 15 April 2021 ([2021] HKCA 418), this Court (Yeung VP and Chu JA) refused to grant an extension of time to the applicant to apply for leave to appeal against the decision of Yau J (“the Judge”) given on 16 October 2018 in HCAL 100/2017 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) given on 20 March 2017 dismissing his petition/appeal from the decision of the Director of Immigration (“the Director”) given on 27 November 2014 rejecting his non-refoulement claim.

2.  By a notice of motion dated 4 May 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I would like to inform to Court of Final Appeal. There is some error in law in my decision maker just relied on col information and my previous facts which were favour on reject my claim. Actual life occur different situation them mentioned col information. Officer and court prefers to ignore the overwhelming of the evidence of the violence toward a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 5 May 2021, the applicant lodged his written submissions on 17 May 2021. 

4.  In the applicant’s written submissions, he advanced the following grounds:

(1)  He disagreed with the decisions made by the Director and the Board as they were not determined fairly.

(2)  The authorities should take into account the procedural unfairness that there is a policy to dispose the non-refoulement claim as quickly as possible. 

(3)  He was not fully informed of his rights and given the opportunity to be heard with the necessary assistance.

(4)  The Director and the Board were in breach of procedural fairness by the fact that

(a)  the Board had unlawfully fettered its discretion by refusing his appeal of the grounds that they did not satisfy the requirement;

(b)  there was procedural unfairness in dealing with his appeal by the Board;

(c)  the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness;

(d)  the Board and the Director failed to meet the greater care and duty owed to a self-represented claimant;

(e)   the hearing was not conducted in a fair manner and the applicant was found as an untruthful witness despite he had answered all the questions honestly; and

(f)  the authorities discriminated against the non-refoulement claimants and adopted a bias approach to dispose the non-refoulement case as soon as possible.  It is unacceptable and detrimental to the spirit of the judicial system.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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.

7.  In our view, the grounds set out in the notice of motion and the written submissions were vague and general assertions without any basis.  They did not pinpoint any error or raise any discernible ground to reverse our judgement.  Further, assessment of risk and evidence is within the province of the Board and in its decision, it had explained that, apart from the findings on the issue of credibility, the applicant’s own account of the alleged attack by his enemy did not attain the minimum severity for torture and there was no evidence suggesting he would face any real risk of harm or ill-treatment if refouled.[1]  We see no basis to challenge the Board’s decision. Accordingly, the applicant’s intended appeal is unarguable and bound to fail.

8.  For the reasons that we gave in our judgment of 15 April 2021, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

[1] See [24] of our judgment dated 15 April 2017.