RE MIAH MOHAMMED ARSHAD

CACV 345/2023 , [2026] HKCA 1260

On appeal from [2023] HKCFI 2717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2023

(ON APPEAL FROM HCAL NO 295 OF 2017)

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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 8 February 2024 ([2024] HKCA 144). The Court of Appeal rejected the appeal against the decision of Fung J dated 18 October 2023 refusing to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his 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 5 March 2024.  Having considered the written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of Appeal

3.  The applicant stated the following grounds of appeal in the Notice of Motion:

(1)     His enemy is still looking for him.  If he returns to his home country, he will be killed;

(2)     The decision maker did not scrutinise the applicant’s problem in his home country.

4.  His further contentions in his written submissions may be summarised as follows:

(1)     The judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director of Immigration (“the Director”) and the Board;

(2)     High standards of fairness are required in the determination of torture claims but the judge reviewed the matter lightly;

(3)     The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director and the Board were required to give reasons justifying their decisions;

(4)     The applicant’s problems are very severe in his home country and he has submitted all the proofs but the judge has not applied greater care and disappointed the applicant;

(5)     The judge did not analyse the applicant’s case properly;

(6)     The adjudicator failed to give sufficient chance for the applicant to arrange for relevant evidence to support his non-refoulement claims as well as his appeal;

(7)     The applicant will face hardship if he is to be returned to his home country and the Board significantly relied on source of news which is not officially recognised or is simply hearsay.

5.  He also requested the court to give him further time to submit supporting documents, without indicating what documents will be submitted and the specific grounds which may be supported by those documents.

Analysis and Disposition

6.  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.

7.  The applicant’s grounds and submissions are substantially the same as the ones he previously raised which had been dealt with in our judgment on 8 February 2024.  The applicant did not identify any particular mistakes in our judgment, nor did he 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).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8.  For the above reasons, we dismiss the Notice of Motion filed on 21 February 2024.