MD KAOSAR ACON v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 395/2018

[2019] HKCA 289

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 395 OF 2018

(ON APPEAL FROM HCAL NO 24 OF 2018)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 19 December 2018 ([2018] HKCA 969) dismissing his appeal against the refusal of leave to apply for judicial review concerning his non‑refoulement claim.

2.  By the Notice of Decision dated 31 December 2015 and the Notice of Further Decision dated 14 February 2017, the Director of Immigration rejected the applicant’s claim.

3.  The applicant appealed to the Torture Claims Appeal Board against the Director’s decision and his appeal was dismissed by the Board on 3 October 2017.

4.  The applicant filed a Form 86 on 5 January 2018 to seek leave to apply for judicial review in respect of the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 3 August 2018.

5.  He filed a Notice of Appeal against the decision of the judge on 14 August 2018.  The appeal was heard by the Court of Appeal on 14 December 2018.  It was dismissed on 19 December 2018 as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

6.  The applicant filed a Notice of Motion on 21 December 2018 for leave to appeal to the Court of Final Appeal.  He failed to lodge his written submissions by the prescribed time pursuant to Practice Direction 2.1[1].

7.  In the Notice of Motion, the applicant stated as follows:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] 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 courts prefers to ignore the 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”.

8.  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.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 2 January 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

10.  The grounds stated in the notice of motion are broad and vague and are without particulars.  The applicant has 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).

11.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.