KHAN MUHAMMAD SHAWAIZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 366/2022

[2023] HKCA 622

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 366 OF 2022

(ON APPEAL FROM HCAL NO 694 OF 2019)

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J U D G M E N T

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Hon Fung J (giving the Judgment of the Court):

Background

1.  This is an application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 30 January 2023 ([2023] HKCA 23).  The Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K W Lung dated 2 September 2022 refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the notice of motion shall be determined on paper without an oral hearing.  The applicant lodged written submissions on 28 March 2023.  Having considered his written submissions and the papers, it is considered appropriate to determine this application on paper.

Grounds of Appeal

3.  The applicant’s ground of appeal as stated in his Notice of Motion filed on 14 March 2023 is that he does not want to return to his country because his life is still in danger and he will face hardship there.

4.  His written submissions may be summarized as follows:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis

5.  Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (Cap 484)  (“the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Good grounds have to be shown by the applicant for the court to grant an extension of time pursuant to section 24(5)  of the Ordinance (See: Re Rajaram Razeena [2019] HKCA 959 at §1.4).

6.  Section 22(1)(b)  of the Ordinance 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.  The applicant was late for more than two weeks in filing the notice of motion. He has not provided any explanation for the delay.  Thus, there is no good ground for the court to grant an extension of time for him to file his notice of motion in the present application.

8.  In any event, the Court of Appeal had held that the applicant failed to adduce any evidence to refute the Board’s findings.  The applicant does not have any reasonably arguable ground to show that the Court of Appeal was wrong in its judgment.  He also 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).

9.  For the above reasons, the Notice of Motion should be dismissed.