MEHMOOD ADIL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CAMP 254/2020

[2021] HKCA 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 254 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 84 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 Au JA) handed down on 13 August 2021 ([2021] HKCA 1150). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 10 June 2020 ([2020] HKCFI 730) refusing to grant 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 26 August 2021 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 7 September 2021.  Having read his written submissions and the papers, we consider it appropriate to determine this application on paper.

3.  The applicant is a national of Pakistan.  He entered Hong Kong illegally on 21 May 2013 and was arrested by the police on the following day.  He raised his torture claim on 24 May 2013 which was later taken as a non-refoulement claim under the unified screening mechanism.  His claim was made on the basis that if he returns to Pakistan he will be harmed or killed by his father’s cousin over a land dispute and/or by the family of his wife whom he married in Hong Kong against their wishes.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge.  His application was late by more than a month.  It was refused by the judge on 8 December 2020^[1].

5.  He renewed his application to the Court of Appeal on 23 December 2020.  The application was dismissed by the Court of Appeal on 13 August 2021 because there is no prospect of success in the intended appeal.

Grounds of appeal

6.  The grounds of appeal stated in the Notice of Motion filed on 26 August 2021 may be summarized as follows:

(1)  There is error in the decision.  The decision maker just relied on the Country of Origin information (“COI”) which favours the rejection of the applicant’s claim.  The actual situation is different from the COI.

(2)  The immigration officer and the High Court ignored the evidence of violence towards the minorities.  The decision betrayed a biased and formula approach unlikely to fairly assess the danger of the applicant’s life and is clearly calculated to reject his claim.

7.  In his written submissions, the applicant further contended that the adjudicator failed to make sufficient enquiry before finalizing the decision, refused the appeal without any reason and did not meet the necessary high standards of fairness and/or is unlawful in making the decision.  He also reiterated the nine grounds of appeal which were previously raised before the Court of Appeal.

Analysis

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 Court of Appeal has already given sufficient explanation on why his application should be rejected.  In the present application, the applicant failed to identify any error of the Court of Appeal in dismissing his application.  Besides, he has not identified 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).

10.  For the above reasons, we decline to exercise our discretion to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 26 August 2021.