RE RUSTAM KHAN AND ANOTHER

CACV 269/2020

[2021] HKCA 920

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 269 OF 2020

(ON APPEAL FROM HCAL NO. 838 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 22 April 2021 ([2021] HKCA 512), this Court (Yeung VP and Chu JA)  dismissed the 1^st and 2^nd applicants’ appeal against the decision of DHCJ Bruno Chan (“the Judge”)  given on 9 July 2020 in HCAL 838/2018 refusing to grant them leave to apply for judicial review. The 1^st and 2^nd applicants sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  given on 8 May 2018 dismissing their petition/appeal from the decisions of the Director of Immigration (“Director”)  given on 1 September 2016 and 25 July 2017 rejecting their non-refoulement claim.

2.  By a Notice of Motion dated 29 April 2021, the 1^st and 2^nd applicants now seek leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

“I would like to say in this grounds that if I go to Pakistan definitely I will be killed by government forces because before I was belong to S.S.B Islamic group. This group was based in Pakistan and many members of this people were hang and shot dead by police forces. If I go same thing happen to me no doubt in it and this movement I don’t like to lose my life. Because now I had family two children and wife, if I die my family become great problem. Therefore I am seeking protection and justice for my life. I cannot take any document proof from my country because nobody there for me. Please give me opportunity to explain my real problem in my oral hearing. I am not blame any error in the judgment but I need to explain my problem to honourable judges. This is my humble request. Thank you.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 30 April 2021, the 1^st applicant lodged his written submissions on 10 May 2021.  In his written submissions, he put forward similar suggestions as set out in his Notice of Motion that he will face risk of harm if refouled to Pakistan and he wanted to live a safe and peaceful life with his family in other country.  He requested an oral hearing to explain the dangerous situation that he may face in Pakistan.

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

5.  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. 

6.  Here, the 1^st and 2^nd applicants failed to pinpoint any error of law or raised any discernible grounds to reverse our judgment and the intended appeal is bound to fail.   As explained at [15] – [21] of our judgment, the 1^st applicant’s case was rejected on the issue of credibility and in any event, internal relocation is a reasonable and viable option to avoid risk of harm.  Regarding the non-refoulement claim of the 2^nd applicant (the son of the 1^st applicant and is a minor), the Board found that if he were to follow the 1^st applicant to return to Pakistan, there would be non-government organization to provide children health care and there is no evidence that he would be subject to any risk of harm other than those considered and rejected by the Board.  We take the view that the 1^st and 2^nd applicants’ cases have no merit and nothing set out in the Notice of Motion and the written submissions can be construed as valid ground of appeal to Court of Final Appeal. 

7.  For the reasons that we gave in our judgment of 22 April 2021, we do not see any prospect of success in the 1^st and 2^nd applicants’ intended appeal against the Judge’s decision and order.  None of the questions raised by the 1^st and 2^nd applicants in the Notice of Motion and the 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.

8.  Accordingly, we refuse to give the applicants leave to appeal to the Court of Final Appeal and dismiss their Notice of Motion.