RE MOHAMMED FAHEEM

CACV 356/2018

[2019] HKCA 653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 356 OF 2018

(ON APPEAL FROM HCAL 707/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 1 February 2019, this court (Chu, Barma and Poon JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 27 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 13 February 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The decision made by the court have not fully consider the real situation of the applicant. He is in a real danger if he come back India.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 27 February 2019.  The applicant submitted that:

“I filed for the appeal because I have noticed the error the court made on the basis that a wrong decision was sent to me by the court that I was granted the leave. And later on only to inform me that was a mistake. And based on the error made, I believe that the court has not been prudent enough to consider my case and I was very concerned about the procedure taken to review my case by the court. Consider my case and I was very concerned about the procedure taken to review my case by the court.

Ground of Appeal:

1. Referring to the judgment on point 17, which was explained on paragraph 12, the court’s error is unforgiven since the court represents just and prudent judgment handed down. While as a foreigner fleeing for the danger if returning to the country, we were expecting protection and understanding from the country who is a signatory of UN(CAT). However, what I have been experiencing from the Department of Immigration is the lack of understanding to the current situation in my home country.

2. While I could see when a mistake is made by the high court, such error is actually unacceptable given that a person’s life and fate will be determined by the decision of court. And this requires precision, sensitivity and sensibility.

3. I was genuinely shocked when I received the judgment and while admitting the error, the court does not consider itself wrong. The implication is that if the court could be that flippant in terms of handling their judgment and decision, and when pointed out, it just casually dismissed as ‘while unfortunate, this did not have any impact on this appeal’. The purpose of lodging the appeal is to see if the TCAB or even the court whether they have been seriously considering the case or whether there is any error while making their judgment. During the process when it is in the court, the administrative error in judgment could imply that such consideration and decision have been made seriously. And it is unfair to me, as an applicant, to be dismissed simply as ‘being unfortunate’. And in this case, there could be a need for reassessment over the TCAB decision on my case if such issue happened in handling down the judgment.

4. As a result, I request for the leave based on the doubt arise because of the mistake made by the high court while lodging the appeal.”

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.

7.  As we have held at [15] of our judgment, it is necessary for the applicant to identify some error on the part of the court below that would call for the intervention of the Court of Appeal.  In this leave application, the applicant relies on the error in drawing up the court order and the alleged danger upon his return.  We have already dealt with these issues at [12] and [16] of our judgment.  In our view, the intended appeal is not reasonably arguable before the Court of Final Appeal.

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 13 February 2019 is dismissed.