REHMAT KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 266/2023，[2024] HKCA 705

On Appeal from [2024] HKCA 15

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 266 OF 2023

(ON APPEAL FROM HCAL NO 824 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  By a judgment dated 12 January 2024 ([2024] HKCA 15) (“the Judgment”), this court dismissed the Applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 23 August 2023 ([2023] HKCFI 2076) (“the Decision”), whereby the Deputy Judge refused his application for leave to apply for judicial review.

2.  On 15 January 2024, the Applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against the Judgment.

3.  The facts and issues in the appeal, as well as this court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this court or the Court of Final Appeal if 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.

5.  In his Notice of Motion, the Applicant only stated:

“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. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” (sic)

6.  Pursuant to Practice Direction 2.1, the Applicant lodged his written submissions on 26 January 2024. In those submissions he cited various legal authorities on the high standards of fairness and Wednesbury unreasonableness and further cited section 37ZT of the Immigration Ordinance (Cap 115) concerning the late filing of the Notice of Appeal before the Board. He further alleged that the Board had acted in a procedurally unfair manner. However, the Applicant had failed to explain how these matters were relevant to his present application.

7.  At the outset, his intended appeal has no merits at all. The matters raised in his Notice of Motion and written submissions are all general and bare allegations. General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6]. His allegations are essentially a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [11] – [18] of the Judgment.

8.  The matters set out in the Notice of Motion and the written submissions fail to engage with the reasons given in the Judgment for dismissing his appeal and do not pinpoint any specific error in or raise any discernible grounds for disturbing the Judgment. Importantly, the Applicant has failed to identify any question of great general or public importance or indeed any other reason why his case ought to be submitted to the Court of Final Appeal for determination on the basis of the “or otherwise” limb as required by section 22(1)(b) of the HKCFAO.

9.  Accordingly, we refuse to give leave to the Applicant to appeal to the Court of Final Appeal. The Notice of Motion is hereby dismissed.