CHY MD FAYEJ AHAMAD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 366/2018

[2019] HKCA 586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 366 OF 2018

(ON APPEAL FROM HCAL NO 981 OF 2017)

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J U D G M E N T

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Hon Kwan VP (giving the judgment of the court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 15 March 2019 ([2019] HKCA 311), dismissing his appeal against the refusal of leave to apply for judicial review concerning his non‑refoulement claim.

2.  By a Notice of Decision dated 13 July 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim.

3.  The applicant appealed to the Torture Claims Appeal Board(“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 3 November 2017.

4.  He filed a Form 86 on 29 November 2017 to seek leave to apply for judicial review in respect of the decision of the Board.  His application was refused by Deputy High Court Judge Bruno Chan on 3 August 2018 ([2018] HKCFI 1552).

5.  The applicant filed a Notice of Appeal against the decision of the judge on 6 August 2018.  The appeal was dismissed by the Court of Appeal on 15 March 2019 as there is no merit in the appeal and no prospect of success in the intended application for judicial review.

6.  The applicant filed a Notice of Motion on 1 April 2019 for leave to appeal to the Court of Final Appeal.  He lodged his written submissions on 15 April 2019 pursuant to the directions of the Registrar of Civil Appeals on 3 April 2019.

7.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals also directed on 3 April 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application shall be determined on paper accordingly.

8.  In the Notice of Motion, the applicant stated as follows:

“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 information. The Officer and cours [sic] prefers to ignore the overwhelming 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”.

9.  In his written submissions, the applicant stressed that high standards of fairness are required in the determination of a torture claim because of the gravity of what is at stake.  He also submitted that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility.

10.  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.

11.  The applicant has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in dismissing his appeal.  He has failed to 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).  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

12.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.