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

CACV 30/2019

[2019] HKCA 829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 30 OF 2019

(ON APPEAL FROM HCAL NO 455 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 9 May 2019 ([2019] HKCA 510), the Court of Appeal (Yeung Ag CJHC, Poon and Pang JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 8 January 2019 refusing to grant leave to him to apply for judicial review.  By a Notice of Motion dated 23 May 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.

2.  In the Notice of Motion, the applicant reiterated the background of his case and set out his various complaints against the decisions made by the Torture Claims Appeal Board (“the Board”) and the Judge as follows:

i.   The Board adopted an unfair approach in evaluation the key evidence of his case;

ii.   The Board had “mischaracterized” the evidence about his role and participation in Awami League;

iii.   The Board failed to consider the Country of origin information sufficiently and properly; and

iv.   The Judge failed to discharge its duty to consider the lawfulness or fairness of the decision made by the Board in a comprehensive manner in order to avoid the refoulement of the applicant.

3.  In compliance with the directions given by the Registrar of Civil Appeals on 24 May 2019, the applicant lodged his written submissions on 6 June 2019.  In his written submissions, he merely repeated the same arguments as set out in the Notice of Motion.

4.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals directed on 24 May 2019 that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application shall be determined on paper accordingly.

5.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if 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.  Here, the complaints set out in the Notice of Motion and the written submissions are new arguments and it is not the practice of this Court to grant leave to appeal on new points that were not canvassed at the substantive appeal before us; nor would leave be granted on new fact-sensitive points not argued at the court below, see Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 824 at [9] and Re Zaman Muhammad [2018] HKCA 859 at [7].

6.  For the reasons that we gave in our judgment, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the questions raised by the applicant in the Notice of Motion or in his written submissions gives rise to any question of great general or public importance or is one that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave under the “otherwise” limb.  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 (Cap. 484) are not met.

7.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.