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

CACV 60/2024

[2025] HKCA 614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2024

(ON APPEAL FROM HCAL NO 2506 OF 2020)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 6 August 2024, this Court gave its judgment (“the CA Judgment”) dismissing the Applicant’s appeal against the order made by Deputy High Court Judge To dated 6 February 2024 refusing to grant leave to the Applicant to apply for judicial review of the decisions of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 2 December 2016 and 17 January 2020 respectively.

2.  The Applicant now applies by Notice of Motion filed on 15 August 2024 for leave to appeal the CA Judgment to the Court of Final Appeal. In the Notice of Motion, the following is stated:

“I don’t agree with [the CA Judgment]. I want to apply the final court appeal.” [sic]

3.  In passing, we would mention that the Applicant took out a summons together with a supporting affidavit on 12 September 2024. Attached to his supporting affidavit were copies of (i) documents relating to a bail application before a criminal court of Pakistan concerning a man named Zeeshan Ali, and (ii) documents relating to a medico legal examination conducted on another man named Saeed Ahmed. It appears to us that the Applicant intended to adduce and rely on these documents as new evidence to support the present application for leave to appeal to the Court of Final Appeal, and to show that his life was still in danger in his home country. He has however failed to properly explain in the summons or his supporting affidavit how these documents would be relevant or of assistance to the present application. In any event, these documents are the same as those provided to us for consideration in the substantive appeal. We refused to consider these documents for the reasons set out in §§14-16 of the CA Judgment, and will not repeat them here. Likewise, we will not consider these documents in the present application.

4.  The Applicant lodged a 6-page written submission on 30 September 2024. In his written submission, the Applicant cited ST v Betty Kwan [2014] 4 HKLRD 277[1]and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim. He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility. He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably. He also cited section 37ZT of the Immigration Ordinance, Cap 115 in relation to the late filing of notice of appeal to the Board but failed to demonstrate how it was relevant to his case. It is noted that his submissions were all general propositions and the Applicant has failed to show specifically how they were relevant to his case.

5.  Under s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, an appeal shall lie to the Court of Final Appeal at the discretion of, inter alia, the Court of Appeal in any civil cause or matter if, in the opinion of the Court of Appeal 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.

6.  The matters raised in the Notice of Motion and his written submission are all general and bare assertions without any specific particulars or explanation. Clearly, they cannot be viable grounds of appeal to the Court of Final Appeal.

7.  Neither the Notice of Motion nor the written submission engages with our reasons for dismissing the substantive appeal given in §§17-23 of the CA Judgment. The Applicant has failed to pinpoint any specific error in the CA Judgment, or raise any discernible or arguable ground for disturbing the CA Judgment.

8.  No question of great general or public importance involved in the proposed appeal is identified in the Notice of Motion or the written submission. We are unable to see any such question being involved in the proposed appeal. There is also no basis to grant leave to appeal on the “otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

9.  Accordingly, the application for leave to appeal is refused and the Notice of Motion is dismissed.