RAMADHAN BAKARI RASHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 230/2022, [2023] HKCA 632

On appeal from [2020] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 230 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 54 OF 2018)

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J U D G M E N T

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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 handed down on 8 December 2022 ([2022] HKCA 1782). The Court of Appeal refused to grant leave to appeal out of time against the decision of Campbell-Moffat J dated 7 August 2020 dismissing the application for leave to seek judicial review concerning the applicant’s non-refoulement claim which was made out of time.

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 his written submissions on 17 January 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Tanzania who entered Hong Kong on 2 February 2012 as a visitor and subsequently overstayed. He was arrested by the police on 7 August 2012. On 3 March 2014, he raised a non-refoulement claim on the basis that he will be harmed or killed by his creditor if he returns to Tanzania because he fails to repay the loan.

4.  He took out a summons in the court below to seek leave to appeal out of time against the decision of the judge. It was refused by the judge on 3 May 2021[1].

5.  On 5 July 2022, the applicant filed a renewed application for extension of time to appeal with the Court of Appeal. The application was dismissed by the Court of Appeal on 8 December 2022 as the applicant failed to show any prospect of success in his intended appeal.

6.  The applicant stated the following as his grounds in the Notice of Motion filed on 4 January 2023:

“I would like to infomr [sic] 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. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  His written submissions may be summarised 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.

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.  The applicant’s grounds and submissions in the present application were not raised in his previous applications before the Court of First Instance or the Court of Appeal. It is not open to the applicant to put forward these grounds for the first time at this late stage of the proceedings, well outside the time limit for bringing judicial review proceedings.

10.  In any event, these grounds and submissions are just bare assertions without particulars or evidence in support. He has not pointed out any error in the judgment of the Court of Appeal. 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).

11.  For the above reasons, we refuse leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 January 2023.