MUHAMMAD TANVEER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 446/2022, [2023] HKCA 1037

On appeal from [2022] HKCFI 834

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 446 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2351 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 19 April 2023 ([2023] HKCA 526). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge P Li dated 24 March 2022 dismissing the application for leave to seek judicial review against the decisions of the Torture Claims Appeal Board and the Director of Immigration (“the Director”) concerning the applicant’s non-refoulement claim.

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 one day late on 5 May 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 Pakistani national. He claimed to have sneaked into Hong Kong by boat from Mainland China. He was arrested by the police on 26 March 2007 for unlawfully remaining in Hong Kong. He raised a torture claim which was rejected by the Director on 6 June 2012. After the introduction of the Unified Screening Mechanism, he filed a non-refoulement claim on 24 March 2014 based on fear of death or serious harm by his uncles who threatened to kill him for his intention to marry outside of his family and/or for refusing to marry one of his cousins.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 2 September 2022[1].

5.  On 26 October 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 19 April 2023 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant stated his grounds of appeal in the Notice of Motion filed on 20 April 2023 which may be summarised as follows:

(1)  The court reached the decision wrongly in assessing the applicant’s non-refoulement claim. The decision is unreasonable and unfair;

(2)  The rights to life must be protected from extra judicial killings;

(3)  Various human rights organizations have compiled reports on the matter which can be testament to the applicant’s assertions;

(4)  The Director failed to attain the required high standard of fairness;

(5)  If the Hong Kong government allows the applicant to stay in Hong Kong, it would be saving a life.

7.  In his written submissions, he further contended that:

(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.

Analysis and disposition

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 are just bare assertions without specifics or evidence in support. In particular, the applicant has not identified any mistakes in the judgment of the Court of Appeal, nor has he raised 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).

10.  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 20 April 2023.