MD MONJU SHEIKH v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION BOARD

CAMP 57 /2019

[2019] HKCA 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 57 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 825 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 July 2019 ([2019] HKCA 749), dismissing his application for leave to appeal out of time against the judge’s decision refusing to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  The applicant’s claim was rejected by the Director of Immigration (“the Director”) by a Notice of Decision dated 13 November 2015 and a Notice of Further Decision dated 20 December 2016.

3.  The Torture Claims Appeal Board(“the Board”) dismissed the applicant’s appeal against the Director’s decisions on 1 September 2017.

4.  The applicant filed a Form 86 on 31 October 2017 to seek leave to apply for judicial review against the decision of the Board and his application was refused by Deputy High Court Judge Bruno Chan on 20 July 2018. 

5.  He applied for leave to appeal against the judge’s decision out of time.  His application was refused by the judge on 26 March 2019 as there is no prospect of success in the intended appeal.

6.  The applicant filed a renewed application with the Court of Appeal for leave to appeal against the decision of the judge out of time.  It was dismissed by the Court of Appeal on 8 July 2019 as there is no reasonable prospect of success in the intended appeal.

7.  The applicant applied for leave to appeal to the Court of Final Appeal by a Notice of Motion filed on 22 July 2019.  His ground of appeal, as stated in the notice of motion, is that the judge did not write any cause for refusing his application and he was not satisfied with this decision.

8.  The applicant lodged his written submissions on 6 August 2019. He reiterated the background of his case and complained about the lack of legal assistance.  He further submitted that he did not receive the judge’s decision and that the Director and the Board had no practical knowledge about his claim.  

9.  The Registrar of Civil Appeals had directed on 23 July 2019 that the Notice of Motion shall be determined on paper only without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.  We think it is appropriate to proceed in this manner and will determine this application on paper.

10.  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.

11.  The applicant’s grounds of appeal and submissions do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal. 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).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

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