RE ASIF MUHAMMAD alias CHOUDHRY SOHAIL AHMAD

CACV 131/2019

[2020] HKCA 108

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 131 OF 2019

(ON APPEAL FROM HCAL 1264/2018)

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J U D G M E N T

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

1.  On 1 August 2019, this court (Cheung and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 8 March 2019 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 21 August 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to appeal the decision made by the Court of Appeal on my non-refoulement claim. The judgment made by the Court of Appeal dismissed the current situation in Pakistan, which is the reason why I fled to Hong Kong in the first place. I will be in dangerous situation in Pakistan. However, the court only focus on the skeleton argument without taking into account of the reason and situation of my fleeing. That is also the spirit of UN CAT.”

4.  The applicant lodged a written submission in support of the application on 4 September 2019.  In the written submission, the applicant submitted that:

(1)     the Board failed to properly understand the Country of Origin Information (COI);

(2)     the applicant failed to submit skeleton argument because he did not understand the law and he had no legal assistance; and

(3)     the Director of Immigration failed to consider the factors of his non-refoulement claim in the proper context.

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 Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission 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 in the Notice of Motion and written submission.  

7.  In the Notice of Motion, the applicant stated that this court failed to consider the situation in Pakistan and the personal circumstances of the applicant.  The applicant did not give any particulars for these matters.  Further, we note that in the Notice of Appeal the applicant complained that the judge disregarded his “dangerous situation” without giving any particulars.  In our view, this ground is not reasonably arguable.

8.  We will now address the grounds raised in the submission.  The complaints against the Board and the Director lack particulars.  As for the ground based on the inability to lodge skeleton submission, the applicant failed to identify any particular prejudice from such inability and his grounds of appeal were considered and dealt with by this court.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

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 21 August 2019 is dismissed.