RE MD JAFOR SHEIKH

CACV 286/2019

[2020] HKCA 287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2019

(ON APPEAL FROM HCAL NO 720 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 5 November 2019, the applicant filed a Notice of Motion seeking leave to appeal to the Court of Final Appeal from the judgment of the Court of Appeal (Zervos and Au JJA and Coleman J) of 8 October 2019, dismissing the applicant’s appeal against the refusal of leave to apply for judicial review.

2.  In his Notice of Motion the applicant set out the following grounds:

“I would like to infomr 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 than what is mentioned in COL information. The Officer and courts prefers to ignore the overwheming 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”. [sic]

3.  On 6 November 2019, the Registrar of Civil Appeals directed that, pursuant to Practice Direction 2.1, the applicant shall lodge with the Court his written submissions on or before 19 November 2019.

4.  On 19 November 2019, the applicant filed written submissions.  The applicant relies on ST v Director of Immigration, [2014] 4 HKLRD 277, and Secretary for Security v Saktheval Prabakar, [2005] 1 HKLRD 289, for the principle that a high standard of fairness is required in the determination of a torture claim.

5.  As was explained to the applicant in the judgment of the Court of Appeal, the primary decision makers are the Director and the Board.  In non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should nonetheless not usurp the role of the Board.  Assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

6.  The applicant has failed to raise any question of great general or public importance that warrants submission to the Court of Final Appeal for consideration.  The criteria provided for under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) have not been met.  Nor is there any reason for leave to be granted under the “or otherwise” limb.

7.  Accordingly, the application for leave to appeal to the Court of Final Appeal is dismissed.