BAH MOHAMED BACHIR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 556/2018

[2019] HKCA 704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 556 OF 2018

(ON APPEAL FROM HCAL NO 791 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 18 April 2019 ([2019] HKCA 462) 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 15 July 2016 and a Notice of Further Decision dated 24 August 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 8 September 2017.

4.  He filed a Form 86 on 20 October 2017 to seek leave to apply for judicial review in respect of the decisions of the Director and the Board.  His application was refused by Campbell-Moffat J on 12 November 2018.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 26 November 2018.  The appeal was heard on 16 April 2019.  It was dismissed by the Court of Appeal on 18 April 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 3 May 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 9 May 2019.

7.  The grounds for the intended appeal are stated in his written submissions and may be summarized as follows:

(1) the adjudicator did not read his non-refoulement claims;

(2) the adjudicator’s judgment was unfair;

(3) the adjudicator erred in finding that the fear is low;

(4) the adjudicator erred in saying that the applicant was in underwear;

(5) the adjudicator erred in not finding that the applicant’s injury on left leg was caused by ill-treatment;

(6) the adjudicator erred in finding that the enemies will not find the applicant after such a long period of time;

(7) the adjudicator took into consideration the irrelevant fact that he was able to obtain a passport.

8.  The applicant also submitted 7 pages of articles related to violent clashes, murder and police attack in Ghana attached to his written submissions.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 6 May 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  It is appropriate to determine this application on paper and we do so accordingly.

10.  The applicant did not take out a summons to apply for leave to adduce the further evidence attached to his submissions.

11.  The articles submitted by the applicant were all published before the Court of Appeal hearing on 16 April 2019.  They could have been obtained and adduced before the hearing with reasonable diligence.  In any event, the contents of the articles have no direct relevance to the applicant’s claim.  The further evidence sought to be adduced plainly does not satisfy the first two conditions in Ladd v Marshall [1954] 1 WLR 1489 at 1491.  And there are no exceptional circumstances in this case which justify the admission of such further evidence in the interests of justice.  We refuse leave to adduce further evidence.

12.  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.

13.  The grounds stated in the applicant’s written submissions were not raised in his previous application for leave to apply for judicial review or in his appeal to the Court of Appeal against the judge’s decision.  There is no good reason why he should be allowed to rely on any of those new arguments at this stage.  In any event, the new arguments are plainly not reasonably arguable. 

14.  The applicant has failed to identify in his Notice of Motion or written submissions 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).

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