AWAIS v. TORTURE CLAIMS APPEAL BOARD

CACV 534 /2020

[2021] HKCA 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2020

(ON APPEAL FROM HCAL NO 548 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Cheung JA and Chu JA) handed down on 28 April 2021 ([2021] HKCA 564). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 18 September 2020 ([2020] HKCFI 2318) dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 12 May 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 21 May 2021.  Having considered his submissions, we think it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He came to Hong Kong illegally on 5 July 2016 and was arrested by the police on 11 July 2016.  On 5 September 2017, he raised a non‑refoulement claim on the basis that if he returns to Pakistan he will be harmed or killed by certain fellow villagers over some personal dispute. 

4.  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 30 November 2017.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 23 March 2018. 

5.  He filed a Form 86 on 3 April 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by DHCJ Bruno Chan on 18 September 2020.

6.  On 30 September 2020, the applicant filed a Notice of Appeal against the decision of DHCJ Bruno Chan.  The appeal was dealt with by the Court of Appeal on paper as the applicant consented to the disposal of his appeal on paper by the Court of Appeal without an oral hearing.  The appeal was dismissed by the Court of Appeal on 28 April 2021.  The applicant filed a Notice of Motion on 11 May 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

7.  The applicant stated his grounds of appeal in the Notice of Motion which may be summarized as follows:

(1)     The applicant did now know failure to lodge a skeleton submission would cost him an oral hearing which he specifically requested for.  He relied too much on friends and NGO to help him out because he did not have any knowledge about the judicial review system of Hong Kong and did not get any translation from friends and NGO;

(2)     Judges were procedurally unfair in the decision.  The applicant requested for legal aid but it was refused.

(3)     The judges mentioned they were unable to found error in the decisions of the Board and the Director.  The applicant did not give any inconsistent evidence at the hearing and gave proof to the Board and the Director but they still made decisions against him.  The Board and the Director made the decisions on the basis of other applicant but his case is genuine and real.  He can provide more proof if they asked him to do so.

(4)     The Court of First Instance did not judge fairly.  The Board mentioned that the applicant can relocate anywhere but it is not possible for him to relocate in Pakistan.

8.  He made further contentions in his written submissions which may be summarized as follows:

(1)     High standards of fairness are required in determination of a torture claim on the part of the decision maker.  There is no universal set of standards applicable to all situations.  What standards of fairness are appropriate would depend on an examination of all aspects relating to the decision in question.

(2)     The adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Analysis and disposition

9.  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. 

10.  The applicant’s grounds are either contrary to the facts or not supported by any evidence.  He contended that he did now know failure to lodge a skeleton submission would cost him an oral hearing which he specifically requested for.  In fact, he did not request for a hearing at the Court of First Instance and he gave his written consent to the Court of Appeal to dispose of his appeal on paper without oral hearing. 

11.  The applicant did not provide any elaboration or evidence to demonstrate that the judges were procedurally unfair.  He mentioned that he did not give any inconsistent evidence at the hearing before the Director and the Board and criticized them for deciding against him based on the case of other applicant. In fact, the applicant chose not to give evidence at the hearing before the Board and the Board found inconsistencies and discrepancies in the evidence he provided in the non-refoulement claim form.  The applicant failed to give any explanation for such inconsistencies and discrepancies.

12.  In addition, the applicant 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). 

13.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 11 May 2021.