RE MAZHAR SHAREEF BUTT

CACV 434/2020

[2021] HKCA 952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 434 OF 2020

(ON APPEAL FROM HCAL 2126/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  On 15 March 2021, this court (Barma JA and ST Poon J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”)  on 24 August 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 25 March 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. In my Notice of Appeal, dismissed on 15 March 2021, by the Appellate Court, the Honourable Judges did not consider that [the Board] and the [Director] failed to done their duty unless did not fulfil the standard of fairness under (CAT)  where stated human value, that I would face risk upon refoulement. The TCAB and the Director’s did not observe into Country of Origin condition and particular law, under they had assessed my application. Based on this I would like to make motion to the court against my Appeal Decision.”

4.  The applicant lodged a written submission in support of the application on 8 April 2021.  In the written submission, the applicant submitted that:

“… 2. Failing to take into account relevant considerations/taking into account irrelevant Consideration. When assessing a non refoulement claim the Decision makers must pay due regard the applicable rules of law, having regard to all relevant matters and not to have regard to irrelevant matters. It is submitted that the TCAB and the Director failed to take into account and / or give proper weight to relevant considerations and materials which he should have, and hence his decision is illegal. Specially, both failed to give due regard to:

a)  the fact is the Honourable judges support the TCAB Decision was improper, because they did not follow the high standard fairness for provide opportunity for my claim.

b)  the fact is My Claim is based on a true story of my life, the Decision maker didn’t observe my fear so well, may be my risk is private and personal dispute but my life would be too risk if I return to my country.

3.  In the Judgment of my Notice of Appeal the honourable Judges stated that there are no merit in my claim which can prove that I would not face real risk if I return to my country.  Its appear to me that my claim is not a private and personal matter but the Decision maker did not observe my fear properly…”

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised. 

7.  The applicant claimed that the Board and the Director failed to fulfill the standard of fairness and they did not consider the country of origin information and the relevant law.  These claims do not disclose any error in our judgment and are not viable grounds of appeal from our decision.  Further, the applicant failed to provide any particulars for any of the above allegations.  This ground is clearly not reasonably arguable before the Court of Final Appeal.

8.  The applicant also claimed that this court should not follow the decisions by the Board and the Director because they failed to properly assess his claim and they wrongly held that his claim was a private and personal matter.  We note that the Board dismissed his claim primarily because he was found to have fabricated his claim and the judge has held that there was no public law error in the Board’s Decision.  In our view, this ground is not reasonably arguable before the Court of Final Appeal either.

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion dated 25 March 2021 is dismissed.