FAROOQ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 230/2020

[2021] HKCA 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2020

(ON APPEAL FROM HCAL NO 235 OF 2018)

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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 Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Chu and Barma JJA) handed down on 6 January 2021 ([2021] HKCA 9). The Court of Appeal struck out and dismissed his appeal against the decision of Deputy High Court Judge Bruno Chan on 23 June 2020 ([2020] HKCFI 945) striking out and dismissing the application for leave to apply for judicial review concerning his non-refoulement claim.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 20 January 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  The applicant lodged his written submissions on 26 January 2021.  Having considered his submissions, we consider it appropriate to determine this application on paper.

3.  The applicant is a 55-year-old national of Pakistan.  He came to Hong Kong illegally on 21 October 2013.  He lodged a non‑refoulement claim on 26 October 2013 on the basis that he would be harmed or killed by the supporters of a rival political party Pakistan Muslim League (N).  His non-refoulement claim was rejected by the Director of Immigration (“the Director”) on 28 October 2016.  His appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board(“the Board”) on 8 June 2017.

4.  He filed a Form 86 under HCAL 356/2017 on 4 July 2017 to seek leave to apply for judicial review against the decision of the Board.  His application was refused by DHCJ Woodcock on 22 December 2017.

5.  He did not appeal against the decision of DHCJ Woodcock but filed another Form 86 under fresh proceedings in HCAL 235/2018 on 13 February 2018 to apply for leave for judicial review against the Board's decision.  His second leave application was struck out and dismissed by DHCJ Bruno Chan on 23 June 2020 for res judicata and abuse of process.

6.  On 30 June 2020, the applicant filed a notice of appeal against the decision of DHCJ Bruno Chan.  His appeal was scheduled to be heard by the Court of Appeal on 5 January 2021 but was subsequently vacated as the applicant failed to lodge his skeleton argument by the deadline prescribed under the direction of the Registrar of Civil Appeals on 14 September 2020.  The Court of Appeal dealt with the appeal on paper and dismissed it on 6 January 2021. The applicant filed a Notice of Motion on 15 January 2021 for leave to appeal to the Court of Final Appeal.

7.  The applicant stated as his grounds of appeal in the Notice of Motion that he cannot go back to his home country because danger is still there and requested for some time to stay in Hong Kong so that he can solve his problem.

8.  His contentions in his written submissions may be summarized as follows: 

(1)  Many things related to his case are ignored which shows that all the decisions were not transparent.

(2)  The actual situation in his home country is different from what the decision maker thinks.  It is hard to live in his country.

(3)  Police and other law-making authorities are using their political influence and the applicant does not have the strength to fight them.  People who want to bear witness against them may disappear or be killed.  It is very difficult to get justice in that corrupt environment.  Even if someone is willing to make a report in a police station, the police will tell those powerful people directly about the informant.

(4)  Torture and deaths of innocent people in police custody are so common.

9.  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.

10.  The applicant has not shown any or any sufficient merits in his intended application for leave to appeal to the Court of Final Appeal.  His grounds of appeal are just bare assertions without evidence in support.  As stated in the judgment of the Court of Appeal, it is entirely appropriate to strike out his notice of appeal on the ground of abuse of process.  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). 

11.  We therefore dismiss his Notice of Motion filed on 15 January 2021.