MALIWANAG NESTOR MARCIAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 308/2018

[2019] HKCA 111

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2018

(ON APPEAL FROM HCAL NO 888 OF 2017)

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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 29 November 2018 dismissing his appeal against the refusal of leave to apply for judicial review concerning his non-refoulement claim.

2.  By a Notice of Decision dated 17 October 2016, 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 9 November 2017.

4.  He filed a Form 86 on 14 November 2017 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 29 June 2018.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 11 July 2018.  The hearing of the appeal was vacated as he failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 3 August 2018. This court dealt with the appeal on paper.  We dismissed the appeal on 29 November 2018 as it has no merit and there is no prospect of success in the intended application for judicial review.

6.  The applicant filed a Notice of Motion on 7 December 2018 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 21 December 2018.

7.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 10 December 2018 that the Notice of Motion shall be determined on paper only without an oral hearing.  This we proceed to do.

Grounds of the intended appeal

8.  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 betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable”.

9.  The applicant lodged two different sets of written submissions on 21 December 2018.  In his 10‑page handwritten submissions, the applicant reiterated the basis of his fear and the threats he received previously.  He submitted in his 5‑page typewritten submissions that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his creditability.

Analysis

10.  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.

11.  The grounds stated in the Notice of Motion are broad and vague and are without particulars.  The written submissions only concern case‑specific matters, they do not involve any issue of great general or public importance.  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).

12.  In the exercise of our discretion, we dismiss the application for leave to appeal to the Court of Final Appeal.