RE IMTIAZ MUHAMMAD

CACV 138/2018

[2018] HKCA 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 138 OF 2018

(ON APPEAL FROM HCAL 462/2017)

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JUDGMENT

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

1.  On 10 August 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 30 April 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 a 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 August 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that it is not safe for him to go back to his home country.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 27 August 2018.  In his written submission, the applicant reiterated that it is not safe for him to go back.  He submitted that the police in Pakistan are corrupt and those who are responsible for torture are rarely brought to justice.  He also alleged that a number of people have been killed while in police custody. 

5.  Having considered the applicant’s notice of motion and written submission, we can find no reason for us 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 his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion do not constitute valid grounds for granting leave to the Court of Final Appeal.  They are case and fact-specific.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent from the matters he has raised in his notice of motion and his written submission.  It was the Board’s conclusion that the applicant had failed to establish a case for non-refoulement protection and that state protection was available to him upon his return to Pakistan.  Neither the Court of First Instance nor this court could find any reason on public law grounds to reverse the Board’s decision or be a basis for challenging that decision.

7.  We also note that the applicant has previously not raised any complaint regarding the danger of being in police custody in Pakistan before the Immigration Officer or the Board.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  In any event, we are satisfied his complaint has no merit.  We note that in [28] of the Board’s decision dated 20 July 2017, the Board concluded that state protection would be available to the applicant. Further at [32], the Board noted that the applicant had never been accused or detained in Pakistan.   In our view, this complaint is plainly not reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the notice of motion dated 13 August 2018 is dismissed.