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

CACV 557/2018

[2019] HKCA 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 557 OF 2018

(ON APPEAL FROM HCAL NO 1069 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 1 March 2019 ([2019] HKCA 255), 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 29 June 2016 and a Notice of Further Decision dated 27 July 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 December 2017.

4.  He filed a Form 86 on 13 December 2017 to seek leave to apply for judicial review in respect of the decision of the Board. His application was refused by Deputy High Court Judge Josiah Lam on 20 November 2018.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 26 November 2018.  The hearing of the appeal was vacated as the applicant failed to lodge his skeleton argument by the time prescribed under the unless order made by the Registrar of Civil Appeals on 14 December 2018.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 1 March 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 8 March 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 20 March 2019.

7.  In the Notice of Motion, the applicant stated his grounds as follows:

“I would like to inform Court. There is some error in law in my decision. Decision maker just relied on Col [sic] information and my previous facts which were favor on rejected my claim. Actual life occur diffrent [sic] situation then mentioned Col information officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approch [sic] unlikely fairly access the danger of my life and clearly calcute [sic] to reject my claims.”[1]

8.  The applicant’s arguments in his written submissions may be summarized as follows:

(1)   his life will be in danger if he is to be returned to Pakistan[2];

(2)   he did give proof and all his documents are real;

(3)   there was a boy who was killed after being sent back to Pakistan;

(4)   he does not understand English and the Immigration Department did not give him a lawyer or help him understand his case by providing interpreter after interview or appeal;

(5)   he was not given a chance to apply for BOR 2 risk and the Immigration Department applied by their own and refused the application without notifying him[3]; and

(6)   there is no justice in Pakistan for poor people.

9.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 11 March 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We therefor determine this application on paper.

10.  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.

11.  The applicant did not lodge his skeleton arguments in his appeal to the Court of Appeal and has now raised some new arguments by way of written submissions.  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 matters raised by him are plainly not reasonably arguable.  He has failed to identify in the 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).

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