SHAHIDUL ISLAM v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 526/2018

[2019] HKCA 486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 526 OF 2018

(ON APPEAL FROM HCAL NO 72 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 27 February 2019 ([2019] HKCA 240), 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 24 November 2016, 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 decision and his appeal was dismissed by the Board on 11 January 2018.

4.  He filed a Form 86 on 15 January 2018 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 Bruno Chan on 12 October 2018.

5.  The applicant filed a Notice of Appeal against the decision of the judge on 23 October 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 30 November 2018.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 27 February 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 and an affirmation on 7 March 2019 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 10 April 2019.

7.  In the Notice of Motion, the applicant stated the following grounds:

(1)   it is not true that there is no substance in the grounds of application;

(2)   the applicant did not complain about the poor performance of the duty lawyer because he feared he would be picked out by the adjudicator for “misappropriating”; and

(3)   the applicant did not have enough time to “address the bundle”.

8.  The applicant set out the following grounds of appeal in his affirmation:

(1)   the judges were wrong in law in holding that there was no state acquiescence or involvement; and

(2)   the judges also failed to find out the clear details of the current situation of Bangladesh.

9.  In his written submissions, the applicant submitted that the present leave application involves question of great general and public importance as the outcome will affect not only himself but also around 2,000 torture claimants in Hong Kong as well as the current procedures practised by the Director and the Board.  He also submitted that the legal issues raised are complex and have not yet been argued in full and as of consequence have not yet been adjudicated upon by any court.  He further stressed that high standards of fairness are required in the determination of a torture claim because of the gravity of what is at stake.  In addition, he submitted that the adjudicator failed to scrutinize the Director and it is a general practice of the Board to not question or find fault with the decision of the Director.  He also criticized the Board for failing to consider the conditions of his country of origin.

10.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals has directed on 25 March 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  We agree it is appropriate to determine this application on paper.

11.  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.

12.  The applicant’s grounds and submissions stated in the notice of motion, his affirmation as well as his written submissions are just bare assertions.  He failed to advance any reasonably arguable basis in support thereof.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance are not met.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

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