RE NASIR ABDUL

CACV 570/2019

[2022] HKCA 32

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2019

(ON APPEAL FROM HCAL 677/2018)

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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.  The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim. His application for leave was dismissed by DHCJ Bruno Chan on 6 December 2019. He filed a notice of appeal on 10 December 2019 but he failed to comply with the unless order dated 13 May 2020 requiring him to lodge two sets of appeal bundles, failing which his appeal would be dismissed.

2.  On 16 July 2020, the applicant applied for relief from sanction for failing to observe the unless order.  On 19 July 2021, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s application.

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

4.  The applicant subsequently applied, by a Notice of Motion filed on 30 July 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I reject the decision made by the Immigration Department and High Court. Over my case for I believe that the judgment is extremely unfair. While the judge found that ‘whilst it is true that the adjudicator was factually incorrect to state in [16a] that the applicant had suggested in his NCF and the Answers that he was present during the First Shooting Incident. When in fact he did not do so, and given the consistent evidence given by him as to the threats from both Sunni and Shia Muslims. I agree that there may be merits in his complaint over adjudicator’s finding that some aspects of his claim as too vague to be given any weight’. Which in this case already constitutes to the procedural error when the assessor did not consider thoroughly during assessment, the judge still believe that this is reasonable. This whole idea left me bewildered and wonder whether the idea of procedural error is an arbitrary definition created by the court.”

5.  The applicant failed to comply with Practice Direction 2.1 and did not lodge the skeleton submission within time.  The applicant was therefore debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s Notice of Motion, we see no reason 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 the documents filed.

7.  The matters stated by the applicant do not constitute grounds for granting leave to appeal 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, as required by 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.  

8.  The grounds put forward in the Notice of Motion do not engage with our reasons for dismissing the application for relief from sanction, given at [18] – [24] of our judgment.  The applicant failed to identify any supposed error in our judgment and he has raised no ground that is reasonably arguable before the Court of Final Appeal.

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 30 July 2021 is dismissed.