RE BASHIR ARFAN

CACV 45/2018

[2018] HKCA 659

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 45 OF 2018

(ON APPEAL FROM HCAL 480/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 25 June 2018, this court (Cheung CJHC and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 9 February 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from a decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 6 July 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1. The Judges have wrongly exercised their case management power. One of my arguments was that the Board was wrong in considering that my delay in lodging the non-refoulement claim was ‘damaging’ to my case. I have explained that the delay was due to my limited language proficiency and understanding of the law.

2. The judges determined that issue by looking hand in hand with the fact that I overstayed in Hong Kong for over 7 months before I was arrested and did not make a non-refoulement claim until nearly 3 months after my arrest.

3. I seek a reconsideration of the case with an oral hearing arranged”.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 20 July 2018.  In his written submission, the applicant reiterated the grounds for seeking leave set out in the notice of motion.  He also added that the statement by the Board that the arrest warrants produced by the applicant could not show that he would have no opportunity to apply for bail or receive a fair trial in Pakistan demonstrated bias on the part of the Board.

5.  Having considered the applicant’s notice of motion and written submission, we can find no reason for us to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion do not constitute valid grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission.  

7.  The first two grounds for seeking leave are apparently directed toward [14] and [15] of the judgment dated 25 June 2018, where this court held that it was open to the Board to take into account certain matters in evaluating the credibility of the applicant’s claim.  The two grounds advanced by the applicant are only concerned with purely factual issues and do not involve any question of law.  Thus, it is inappropriate for this court to grant leave based on those grounds.

8.  As for the ground raised in the skeleton submissions concerning the Board’s evaluation of the arrest warrant, this was dealt with at [13] of our judgment.  This ground is also only concerned with purely factual issues and is, in our view, bound to fail. 

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the notice of motion dated 6 July 2018 is dismissed.