FARUK MD OMR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 145/2019

[2019] HKCA 881

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 145 OF 2019

(ON APPEAL FROM HCAL NO 1451 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 28 June 2019 ([2019] HKCA 722), dismissing his appeal against the refusal of leave to apply for judicial review concerning his non‑refoulement claim.

2.  By a Notice of Decision dated 9 February 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3.  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 13 July 2018.

4.  He filed a Form 86 on 24 July 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge K. W. Lung on 15 March 2019.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 25 March 2019.  The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 12 April 2019.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 28 June 2019 as the applicant has not put forward any viable ground in his notice of appeal.

6.  The applicant filed a Notice of Motion on 9 July 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 23 July 2019.

7.  In the notice of motion, the applicant stated that he cannot go back to Bangladesh because his life is in danger in his country.

8.  In his written submissions, he submitted that the adjudicator acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.  He also stressed that high standards of fairness are required in the determination of a torture claim as the decision would have a significant effect on an applicant’s claim.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 11 July 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We find this appropriate and will determine the application on paper accordingly.

10.  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.

11.  The applicant’s grounds of appeal are just bare assertions without substance or evidence in support.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal.  He 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).

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