FAHAD SHAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 403/2019

[2020] HKCA 251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2019

(ON APPEAL FROM HCAL NO 639 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 (Kwan VP and S T Poon J) handed down on 13 December 2019 ([2019] HKCA 1405). The Court of Appeal dismissed his appeal against the decision of Deputy High Court Judge Josiah Lam on 22 August 2019 ([2019] HKCFI 2057) refusing leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 24 December 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submission on 20 January 2020.  Having considered his submission, we think it is appropriate to determine this application on paper and proceed to do so accordingly.

3.  By a Notice of Decision dated 13 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

4.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 15 March 2018.

5.  He filed a Form 86 on 13 April 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Josiah Lam on 22 August 2019.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 2 September 2019.  The appeal was heard by the Court of Appeal on 10 December 2019 and was dismissed on 13 December 2019.  He filed a Notice of Motion on 23 December 2019 for leave to appeal to the Court of Final Appeal.

7.  The grounds of appeal stated in the Notice of Motion may be summarized as follows[1]:

(1)  The judges failed to consider his case fully. They were merely trying to dispose of the case as quickly as possible and have therefore been unfair.

(2)  There is no indication that “the filing of the notice of appeal is also self-evident that the applicant’s right to seek further avenue of appeal has not been deprived of”.  This is a presumptuous ground made by the judge without any basis.  Should the applicant be aware of the actual reasoning behind the refusal, he could have been able to generate more grounds of appeal.  However, such right has been deprived of.

(3)  It is not true that the applicant has failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board as his main ground of appeal has all along been procedural unfairness.

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 present grounds submitted by the applicant are untenable and do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  According to the applicant’s submissions at the hearing before the judge in the court below, his grounds for judicial review had been prepared by his lawyer[2]. His grounds for judicial review were fully considered by the judge.  The Court of Appeal has also reviewed such grounds and the judge’s decision.  In addition, all grounds of appeal relied on by the applicant in his notice of appeal filed on 2 September 2019 have been sufficiently dealt with in paragraphs 13 to 24 of the judgment of the Court of Appeal.  The determination of the Court of Appeal was supported by authorities and detailed reasoning.  The applicant has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal. 

10.  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).

11.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.