GASSAMA BAKARY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 331/2021

[2022] HKCA 1349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 331 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1759 OF 2018)

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J U D G M E N T

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Hon Kwan VP (handing down 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 (Kwan VP and Barma JA) handed down on 3 March 2022 ([2022] HKCA 315). The Court of Appeal dismissed his application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 24 June 2020 ([2020] HKCFI 1291) refusing to grant leave to apply for judicial review against the decision of the Torture Claims Appeal Board concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 4 March 2022 that the Notice of Motion shall be determined on paper only without an oral hearing. The applicant lodged his written submissions on 14 April 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Gambia. He came to Hong Kong as a visitor on 13 August 2014 and subsequently overstayed. He surrendered to the Immigration Department on 13 November 2014 and lodged a non-refoulement claim on 12 December 2014. His claim was made on the basis that he will be harmed or killed by the officers of the National Intelligence Agency if he returns to Gambia because of his previous participation in the delivery of some top secret information and confidential country information.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. His application was late for 3 weeks, exclusive of the court’s summer vacation in August. It was refused by Deputy High Court Judge P Li on 22 April 2021[1].

5.  The applicant renewed his application to the Court of Appeal on 10 August 2021. The application was dismissed on 3 March 2022 because he failed to show any prospect of success in the intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 4 March 2022, the applicant stated the following as his grounds of appeal:

“I would like to infomr [sic] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL [sic] information and my previous facts which were in favor while rejecting my claim. Acual [sic] life occur different situation then what is mentioned in COL [sic] Information. The Officer and cours [sic] prefers to ignore the overwheming [sic] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary [sic] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

7.  The applicant’s further contentions in his written submissions may be summarised as follows:

(1)  High standards of fairness are required in the determination of a torture claim on the part of the decision maker.

(2)  The Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

8.  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.

9.  The applicant’s grounds and submissions are just bare assertions without particulars or evidence in support. He failed to demonstrate that the Court of Appeal was wrong in dismissing his application. He also did not 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). Besides, there is no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

10.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 4 March 2022.