HOSSAIN MUKTER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 176/2019

[2019] HKCA 1139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 176 OF 2019

(ON APPEAL FROM HCAL NO 717 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 6 August 2019 ([2019] HKCA 882) dismissing his appeal against the decision of Deputy High Court Judge Josiah Lam dated 2 April 2019 ([2019] HKCFI 861) refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  By a Notice of Decision dated 23 February 2016 and a Notice of Further Decision dated 23 November 2016, 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 decisions and his appeal was dismissed by the Board on 18 April 2018.

4.  He filed a Form 86 on 25 April 2018 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by Deputy High Court Judge Josiah Lam on 2 April 2019.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 12 April 2019.  It was dismissed by the Court of Appeal on 6 August 2019.

6.  On 15 August 2019, the applicant filed a Notice of Motion and an affirmation for leave to appeal to the Court of Final Appeal.

7.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 19 August 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant has lodged his written submission on 12 September 2019.  We find it appropriate to determine this application on paper and will proceed accordingly.

The grounds of appeal

8.  In the Notice of Motion, the applicant stated that:

(1)  The judgment of the Court of Appeal was wrong in deciding that there is no substance in the grounds of his application for judicial review.

(2)  He did not complain about the poor performance of his duty lawyer because he feared that he would be “picked out for misappropriating” by the adjudicator.

(3)  He did not have enough time to “address the bundle”.

9.  He set out the following grounds in his affirmation:

(1)  The judges were wrong in law in holding that there was no state acquiescence or involvement.

(2)  The judges also failed to find out the clear details of the current situation of Bangladesh.

10.  The contentions stated in his written submission may be summarized as follows:

(1)  High standards of fairness are required in torture claims.  The adjudicator failed to scrutinize the Director and instead followed the practice not to question or find fault with the decision of the Director.  The adjudicator failed to consider the conditions of the country of origin. 

(2)  Minimum standards of procedural fairness are required in the decision-making process.  The decision-maker is under a duty to act fairly.

Discussion and disposition

11.  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.

12.  The applicant’s grounds do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  His grounds are bare assertions without elaboration or evidence in support.  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). 

13.  The Court of Appeal has dealt with the applicant’s grounds of appeal and the reasons for refusal have been explained in the judgment dated 6 August 2019.  The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his appeal.  His arguments do not raise any reasonably arguable grounds for reversing the judgment of the Court of Appeal.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

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