FARUK OMAR v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 557/2019

[2021] HKCA 283

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 557 OF 2019

(ON APPEAL FROM HCAL NO 1119 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 2 June 2020, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 25 May 2020. In that judgment the Court (Lam VP and ST Poon J) dismissed the Applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 22 November 2019 dismissing his application for leave to apply for judicial review.

2.  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 (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.  In his Notice of Motion for leave to appeal to the CFA, the Applicant stated that this Court did not consider that the Torture Claims Appeal Board (“Board”) and the Director of Immigration (“Director”) did not meet the required standard of fairness, and failed to properly inquire into country of origin conditions and assess his claim.  He also stated that this Court confirmed the Board decision despite the Board not fully assessing BOR 2 risk[1] and BOR 3 risk[2].

4.  Pursuant to the Court’s directions of 4 June 2020, the Applicant lodged his written submissions on 15 June 2020.  In his submissions, the Applicant reiterated the arguments made on the substantive appeal at this Court.  Those arguments are that the Board and the Director failed to comply with their duty to make sufficient inquiry into country of origin conditions, adopted a passive approach contrary to the required high standards of fairness, failed to take into account and/or give proper weight to relevant considerations and materials, and failed to properly assess his fear.

5.  In addition, the Applicant submitted that it was improper for this Court to support the Board decision which did not meet the required high standard of fairness and that this Court failed to ensure that the Board fulfilled their duty to inquire into country of origin conditions.

6.  In substance, the Applicant’s above arguments had already been rejected on the substantive appeal at this Court, for the reasons given in the judgment of 25 May 2020.

7.  The Applicant failed to engage with those reasons and has not raised any discernible or arguable ground for disturbing this Court’s judgment.  The matters raised in his Notice of Motion and his written submissions fail to pinpoint any specific error in this Court’s judgment or the judgment of the court below.  

8.  In any event, in the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

9.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion accordingly.