RE ALI MUHAMMAD

CACV 160/2021

[2022] HKCA 965

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 160 OF 2021

(ON APPEAL FROM HCAL 870 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the judgment of the court):

Application

1.  Before the court is an application for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment of this court (Cheung JA and Lisa Wong J) dated 17 September 2021 ([2021] HKCA 1344) (“Judgment”).

2.  By the Judgment, we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan given on 8 April 2021 ([2021] HKCFI 926) (“Judge’s Decision”) refusing the applicant leave to apply for judicial review of the decision given by the Torture Claims Appeal Board on 11 May 2018 (“Board’s Decision”) concerning his non-refoulement claim (“Claim”).

Paper disposal appropriate

3.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. Having considered the material available to us, we agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

4.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

5.  The allegations upon which the Claim was made, the issues raised by the appeal from the Judge’s Decision and our reasons for dismissing the same have been set out in the Judgment and will not be repeated here.

6.  By the notice of motion filed herein on 11 October 2021, the applicant asserted (1) that he did not have any knowledge of the judicial review system in Hong Kong; (2) that he did not know he would be deprived of an oral hearing if he failed to lodge written submission; (3) that his application for legal aid was refused; (4) that he had to rely on friends and NGOs who did not file any written submission for him; (5) that he was consistent in his evidence and his case was genuine and not a story, for which he had provided proof, yet the Board still found against him; (6) that the Board did so “on the basis of other applicant”; (7) that he could provide more proof, if necessary; (8) that contrary to the Board’s Decision, he could not relocate within Pakistan as the Taliban was taking over the country; and (9) that the Court of First Instance did not examine the Board’s Decision fairly.

7.  The applicant has not filed any written submission in support of this application as required by Practice Direction 2.1.

Discussion

8.  The complaints made in the notice of motion did not engage the reasons we gave in [16] to [21] of the Judgment for dismissing the application’s appeal against the Judge’s Decision.

9.  Indeed, none of such complaints had been put forward before the first instance judge in support of the application for leave to apply for judicial review of the Board’s Decision or before this court in support of the appeal against the refusal of leave. As noted in [12] and [13] of the Judgment, the applicant had not advanced any purported grounds for judicial review or grounds of appeal.

10.  It is worthy of note that the contents and wordings of the notice of motion are proforma and are widely and indiscriminately used by many claimants for non-refoulement protection, with no regard to their applicability to the individual claim or how the claim was processed under the unified screening mechanism. In this case, the applicant did have oral hearings before the Board and this court, which he attended and was given the chance to make oral submission in support of his appeal to the Board and his appeal before us. He did not have an oral hearing for his application for leave to apply for judicial review of the Board’s Decision only because did not ask for one. See [11] of the Form CALL-1.

11.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance.

12.  Nor do we see any scope to grant leave under the “or otherwise” limb.

Disposition

13.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.