KHAN KAMRAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 456/2019

[2020] HKCA 720

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 456 OF 2019

(ON APPEAL FROM HCAL NO 426 OF 2018)

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BETWEEN

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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 (Kwan VP and Yuen JA) handed down on 28 May 2020 ([2020] HKCA 380) dismissing his appeal against the decision of Deputy High Court Judge Bruno Chan dated 25 September 2019 ([2019] HKCFI 2297). The judge had refused to grant leave to apply for judicial review concerning his non-refoulement claim.

2.  On 8 June 2020, the applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal with his affirmation in support dated 1 June 2020. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 10 June that the Notice of Motion shall be determined on paper only without an oral hearing and the applicant was to lodge his written submission within 14 days.

3.  On 2 July 2020, the applicant wrote to the court seeking an extension of time of two to three months to lodge his written submission as he was applying for legal aid.  The Registrar replied by letter dated 6 July 2020 stating that the applicant’s last application for legal aid was rejected on or about 6 June 2019 and directed the applicant to lodge his written submission by 13 July 2020, failing which he would be deemed to rely only on the representations made in the Notice of Motion and his supporting affirmation in the present application.

4.  The applicant failed to lodge a written submission by the extended time.  Having considered the documents, we think it is appropriate to determine this application on paper and will proceed to do so.

5.  By a Notice of Decision dated 22 March 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim for non-refoulement.

6.  He appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision and his appeal was dismissed by the Board on 23 March 2017.

7.  He filed a Form 86 out of time on 28 July 2017 under HCAL 466/2017 to seek leave to apply for judicial review against the decision of the Board. His application was refused by Deputy High Court Judge Woodcock on 13 March 2018.

8.  He then took out a second application for leave to apply for judicial review against the Board’s decision on 16 March 2018 under HCAL 426/2018 with substantially the same grounds. 

9.  His second leave application was dismissed by DHCJ Bruno Chan on 25 September 2019 as res judicata and an abuse of process. 

10.  The applicant filed a Notice of Appeal against the decision of DHCJ Bruno Chan on 30 September 2019.  The hearing of the appeal was vacated by the Court of Appeal as the applicant failed to lodge a skeleton argument by the extended deadline prescribed under the direction of Kwan VP on 17 April 2020. His appeal was dealt with on paper.  The Court of Appeal struck out the Notice of Appeal and dismissed the appeal on 28 May 2020.  He filed the Notice of Motion on 8 June 2020 for leave to appeal to the Court of Final Appeal.

11.  The applicant stated the following grounds of appeal in the Notice of Motion and his affirmation in support:

(1) “The claims that the judgment has made stated in substance in the grounds of the application [are] not true”.

(2) The applicant did not make a complaint about the poor performance of his duty lawyer because he feared that he would be picked out for “misappropriating” by the adjudicator.

(3) He did not have enough time to address the bundle.

(4) The judges were wrong in law in holding that there was no state acquiescence or involvement.

(5) The judges also failed to find out the details of the current situation of Pakistan.

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 applicant’s grounds pertaining to insufficient time for addressing the bundle and poor performance of his duty lawyer were not raised previously before the Court of First Instance or the Court of Appeal.  It is not open to the applicant to put forward new grounds for the first time at this late stage, well outside the time limit for bringing judicial review proceedings.

14.  The rest of his grounds are just bare assertions without elaboration or evidence in support.  They do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  In particular, his Notice of Appeal was struck out by the Court of Appeal as an abuse of process for re-litigating the same matter by lodging his second leave application but the applicant did not put forward any argument to address this point.  He has not demonstrated any reasonably arguable basis that the Court of Appeal was wrong in striking out and dismissing the appeal. 

15.  Moreover, 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).

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