RE AHMED ZULFIQAR

CACV 73/2019

[2019] HKCA 1234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2019

(ON APPEAL FROM HCAL 701/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 17 June 2019, this court (Barma JA and Bharwaney J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 1 February 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 28 June 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

(1)  the judges have erred in determining that the judge had not failed to appreciate the significance of his non-refoulement claim.  The lack of assistance to the applicant was an error of law and procedure, evidence of procedural unfairness and a failure to adhere to a high standard of fairness;

(2)  the judges have not addressed the issues regarding (6) to (10) in his skeleton submission dated 8 May 2019;

(3)  the judges have failed to address how it was the applicant’s fault to “properly deal with this matter to not hold the hearing for BOR 2”;

(4)  the applicant also complained that “there has been no evidence that I was given an oral hearing of my appeal regarding to BOR 2 claim or it is unreasonable if the [Board] take evidence of my BOR 2 in the appeal which was not including the BOR 2”;

(5)  the was a lack of “evidential consideration of issues raised in court”; and

(6)  the applicant claimed that “if a litigant has not been informed fully of his rights and be given the opportunity to be heard with such assistance, then it cannot be said that the assistance cannot be of any use as it was not even granted in the first place”.

4.  The applicant lodged a written submission in support of the application on 12 July 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He submitted that there was a lack of language assistance and that the lack of a hearing for his claim based on BOR 2 risk was unfair.  He asked to have his claim based on BOR 2 risk be remitted to the Director for consideration and that he be given legal and language assistance.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.

7.  At [15] – [16] of our judgment, we have already addressed the issues regarding the lack of hearing for his BOR 2 risk and the alleged lack of language assistance (which the applicant advanced in paragraphs 6-10 of his skeleton submission dated 8 May 2019).  As for the ground based on the lack of “evidential consideration of issues raised in court”, this ground is vague and lacks particulars.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

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

9.  For these reasons, the Notice of Motion dated 28 June 2019 is dismissed.