HOSSAIN MD FARHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 496/2018

[2019] HKCA 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 496 OF 2018

(ON APPEAL FROM HCAL NO 1056 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 25 February 2019 ([2019] HKCA 184), 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 2 September 2015 and a Notice of Further Decision dated 9 June 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 decisions and his appeal was dismissed by the Board on 7 December 2017.

4.  He filed a Form 86 on 12 December 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 28 September 2018.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 3 October 2018.  The hearing of the appeal was vacated as the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 29 November 2018 by lodging his skeleton argument after the deadline imposed by the unless order.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 25 February 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 March 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 14 March 2019.

7.  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. Actual 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”.

8.  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.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 5 March 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We therefore determine this application on paper.

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’s grounds are broad and vague and are without particulars.  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.