RE AWRANG AMIR MOHAMMAD

CACV 73/2021

[2022] HKCA 1404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 73 OF 2021

(ON APPEAL FROM HCAL NO 963 OF 2019)

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J U D G M E N T

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

1.  This court handed down judgment on 18 March 2022 ([2022] HKCA 424)  dismissing the applicant’s appeal against an order of DHCJ C P Pang given on 11 February 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non-refoulement claim.

2.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 14 April 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.

4.  The Notice of Motion states:

“1. In my judgment, the Honourable Judge failed to observe the Country [of] origin condition in to my country Afghanistan, whereas I had sated that I would be harm by the Taliban Terrorist who is in power currently in my Country. There are no value of life and under Taliban regime, who are opponent against them in the past the consequence would be more dangerous and I would be killed upon refoulement.

2.   Failure to consider my fears that I would be of danger against Taliban regime, there are no secure for my life and my Country is the most dangerous place for living therefore in my Notice of Motion I request to consider my appeal.”

5.  Pursuant to the directions of the Registrar of Civil Appeals, the applicant lodged written submissions on 25 April 2022.  This Notice of Motion is determined on paper without an oral hearing, which we consider appropriate.

6.  In his written submissions, he advanced the following grounds for his intended appeal:

(1)  The Director of Immigration (“the Director”)  and the Torture Claims Appeal Board (“the Board”)  failed to take into account relevant considerations or took into account irrelevant considerations when assessing his claim and failed to give proper weight to relevant considerations and materials and therefore their decisions are illegal.  In particular:

(a)  the Judge’s Decision and the Board’s decision were improper as they did not follow the high standards of fairness.  The Court of Appeal judges did not consider the facts of his case and his fear of refoulement.

(b)  the decision makers failed to observe the country of origin information that Afghanistan is a dangerous place and the Taliban will harm him upon his return.

(c)  there was no oral hearing for his appeal against the Judge’s decision before the Court of Appeal.

(d)  the decision makers failed to observe the risk to his life and fear although it may be that the risk is private and personal.  

(2)  The Court of Appeal Judges stated there were no merits in his claim.  It appeared to him that his claim is not a private and personal matter but the decision maker did not observe his fear properly.

(3)  The Judge and the judges in the Court of Appeal just supported the Board’s decision and did not focus on his fear that his life would be in danger.

7.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance provides that leave to appeal to the Court of Final Appeal may be granted if 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.

8.  As pointed out in [2] of our judgment, the applicant had indicated his consent in writing for his appeal to be disposed of on paper without an oral hearing, so there is nothing in his complaint in para (6)(c)  of his submissions.

9.  More importantly, we specifically pointed out at [16] and [19] of our judgment that the Court of First Instance and this court were acutely conscious of the volatile situation and the change in the political situation in Afghanistan (where the Taliban has taken control of many major cities)  which may affect the viability of relocation as suggested by the Board in its decision made on 22 March 2019.  Accordingly, this court pointed out that the applicant may wish to make a “subsequent claim” if he fulfils the requirements of s.37ZO of the Immigration Ordinance (Cap. 115). There is no indication that he has done so.  Instead the intended grounds of appeal as set out in his written submissions simply repeated his case and did not engage with the reasons set out in our judgment.

10.  Having regard to the above, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b)  of the HKCFAO.  

11.  Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

12.  By reason of the above, the Notice of Motion filed on 14 April 2022 is dismissed.