ALAM IMTIAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 527/2022, [2023] HKCA 1217

On appeal from [2022] HKCFI 539

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 527 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2196 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 handed down on 4 May 2023 ([2023] HKCA 630). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 1 March 2022 dismissing the application for extension of time to apply for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 22 May 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of India. He was arrested by the police on 5 November 2007. He lodged a torture claim on 15 November 2007, which was taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism. His claim was made on the basis that, if refouled, he would be harmed or killed by his elder brothers because of a land dispute.

Grounds of appeal

4.  The applicant stated his grounds of appeal in the Notice of Motion filed on 8 May 2023 which may be summarised as follows:

(1)  The court reached the decision wrongly in assessing the applicant’s non-refoulement claim. The decision is unreasonable and unfair;

(2)  The rights to life must be protected from extra judicial killings;

(3)  The judge failed to give the applicant sufficient time and chance to arrange the relevant evidence for his non-refoulement claim as well as the appeal;

(4)  The incompetency of the administration in the applicant’s country is still a very serious problem.

5.  In his written submissions, he further contended that:

(1)  high standards of fairness are required in the determination of a torture claim on the part of the decision maker;

(2)  the Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

7.  The applicant was late for 5 months in filing his application for extension of time to appeal but did not adduce any evidence on the last occasion. In the present application, the applicant also did not put forward any evidence which he claimed he did not have sufficient time and chance to submit previously. He also failed to identify what evidence he intended to adduce in support of his case. Thus, the allegation of lack of sufficient time and chance to arrange for the relevant evidence is without basis.

8.  The rest of the applicant’s grounds and submissions in the present application are substantially similar to the ones he raised in the previous application for extension of time to appeal, and have already been rejected by the Court of Appeal. The applicant has not identified any mistakes in the judgment of the Court of Appeal nor has he raised 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).

9.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 May 2023.