RE HASSAN MD

CACV 355/2019

[2020] HKCA 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 355 OF 2019

(ON APPEAL FROM HCAL 69/2018)

________________________

_______________

JUDGMENT

_______________

Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 10 December 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 2 December 2019[1] (“Judgment”), dismissing the applicant’s appeal from a decision dated 26 July 2019[2] (“Judge’s Decision”) by Deputy High Court Judge Bruno Chan (“Judge”), refusing him leave to apply for judicial review of the decision dated 15 June 2017 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“Claim”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, in seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error of law in my decision. Decision maker just relied COL 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 prefers to ignore overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  Second, on 24 December 2019, the applicant lodged written submission that was a somewhat expanded version of the skeleton submission filed on 11 October 2019, a summary of which can be found in [11] of the Judgment.  By the later submission, the applicant added the following: (1) a one-sentence assertion[3] that the Board had acted in a procedurally unfair manner by not properly assessing his credibility; (2) statement of the trite principle that the court may intervene with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker[4] (but without explaining in any way how it may be material his proposed appeal to the CFA); and (3) mention of section 37ZT of the Immigration Ordinance (Cap 115)[5] (which clearly has no relevance as the applicant had not been late in appealing the Director of Immigration’s rejection of the Claim to the Board).

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb.

8.  We dismissed the applicant’s appeal against the Judge’s Decision on the ground that the proceedings before the Judge was per se an abuse of process because it was a repeated application for leave to apply for judicial review of the Board’s Decision.  As before[6], neither the notice of motion nor the written submission in purported support thereof has acknowledged such abuse, let alone address it.

9.  Insofar as the applicant is suggesting in his notice of motion that the Department of Immigration officer and the Board adjudicator involved in the screening of non-refoulement claims and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence in support of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

10.  To the contrary, in the applicant’s case, as noted in [4(6)] of the Judgment, the Board found the applicant an incredible witness and rejected the Claim in its entirety due to inconsistencies between his oral evidence before the Board on the one hand and the independent news reports available to the Board and the assertions the applicant had made in his non-refoulement claim form and/or at his screening interview with the officer(s) of the Immigration Department on the other.  The dismissal of the Claim on the fact was well within the province of the Board.  The Board arrived at such decision after hearing the applicant and testing his evidence.  The Board did not in fact refer to or rely on any COI in assessing the applicant’s credibility.  As stated in [5] above, the applicant has, for the purpose of seeking leave to appeal to the CFA, made a bare assertion in his written submission that the Board had failed to properly assess his credibility.  However, he has not given any particulars as to how the Board had allegedly so failed.  The Board dealt with the applicant’s appeal in detail in a 15-page decision.  In particular, in [26] to [36], the Board analysed the applicant’s testimony given, not just before it, but at different stages of the screening process, and provided detailed reasons to explain why it rejected the Claim on the fact and evidence.  We can discern no ground to question the Board’s analysis.

11.  As for the courts’ role, a judicial review is not a channel for a reconsideration of facts.  The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.