RE UDDIN IMTIAZ

CAMP 278/2019

[2021] HKCA 44

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 278 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 272 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 September 2020 ([2020] HKCA 743), this Court (Yeung VP and Pang JA) dismissed the applicant’s application for an extension of time to appeal against the decision given by Deputy High Court Judge Josiah Lam (“the Judge”) on 25 June 2019 in HCAL 272/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 7 July 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 9 March 2016 and 16 May 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 22 September 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL information. The Officer and courts prefer to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 25 September 2020, the applicant lodged his written submissions on 5 October 2020.

4.  In the applicant’s written submissions, he advanced the following grounds of appeal:

(1)  It is his fundamental human right not to be subject to torture and high standards of fairness are required in determination of his non-refoulement claim as the decision had significant implications for his substantive right and his claim.  He cited ST v Director of Immigration[1] and quoted some passages in Secretary for Security v Sakthevel Prabakar[2] in support of his assertions. 

(2)  The Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility.  He averred that by the doctrine of reasonableness, an administrative decision should be set aside if it was unreasonable.  He cited Associated Provincial Picture Houses Limited v Wednesbury Corporation[3] and R v Ministry of Defence ex p Smith[4] in support of his complaint.

(3)  He referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is a provision concerning the late filing of notice of appeal to the Board.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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.

7.  Here, the applicant’s case was dismissed by the Judge for abuse of court process as he had unreasonably taken out two applications for leave to apply for judicial review.  The applicant provided no grounds to challenge the Judge’s decision in the appeal before us and upon our findings that the applicant’s intended appeal was devoid of merit, we dismissed his application accordingly.  The applicant did not raise any reasonably arguable ground of appeal on the merit of his claim or any discernible or arguable ground for disturbing our judgment.  His intended appeal is bound to fail.

8.  Further, the Board had refused the applicant’s appeal on the issue of credibility and even on the account of his story, he did not suffer any serious physical or mental harm before his left his home country.  The Board was not persuaded that he would be subjected to ill-treatment amounting to torture or persecution if refouled.  It was our judgment that the findings were well within the province of the Board and there was no basis for intervention.

9.  For the reasons that we gave in our judgment of 11 September 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.