ANWAR NOMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 552/2022, [2023] HKCA 1215

On appeal from [2021] HKCFI 3408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 552 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 260 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1.  This is the applicant’s application by way of Notice of Motion filed on 8 June 2023 for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 8 June 2023 ([2023] HKCA 713). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 25 November 2021 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim upon his request to withdraw his case.

2.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 23 June 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

Grounds of appeal

3.  The grounds raised in the applicant’s Notice of Motion filed on 8 June 2023 may be summarised as follows:

(1)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decision made by the Director of Immigration in refusing his application for judicial review.

(2)  There is some error in law in the decision. The decision maker just relied on the Country of Origin information (“COI”) and previous facts which favour the rejection of the applicant’s claim.

(3)  The actual situation is different from the COI. The immigration officer and the court ignored the evidence of violence towards minorities, searching for unrealistic silver lining.

(4)  The judge did not apply the law properly.

4.  The applicant has also advanced the following further grounds in his supporting affirmation filed on 8 June 2023:

(1)  He was unrepresented and did not have access to legal advice.

(2)  There is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

(3)  The merits of his ground of appeal constitute sufficient reason and justification for the court to exercise its discretion in allowing his appeal.

5.  As for the applicant’s written submissions, he merely copied verbatim from the submissions he lodged previously before this court on 11 January 2023, which were summarised in the Court of Appeal’s decision at §10. Hence, we do not intend to repeat them here.

Analysis and disposition

6.  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.

7.  As stated previously in the Court of Appeal’s decision at §16:

“16. The applicant’s grounds in his written submissions were not raised in his previous application at the court below. These new grounds should not be entertained as an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below [Re Qadir Sher [2018] HKCA 160 at §11.”

8.  The above passage is applicable to the new grounds and contentions raised for the first time in the Notice of Motion and the supporting affirmation. In any event, these contentions are just bare assertions without evidence in support. As for the applicant’s specific complaint regarding the lack of access to legal advice, this is unmeritorious. The Court of Appeal has repeatedly held that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (Re Paswan Shibu Lal [2018] HKCA 249 at §21).

9.  In conclusion, the Court of Appeal has duly considered the applicant’s explanation for the delay and given reasons for refusing to grant extension of time in the judgment dated 8 June 2023. The applicant failed to demonstrate that the Court of Appeal was wrong in dismissing his application, nor did he 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).

10.  For the above reasons, we refuse to give leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 June 2023.