ESPIRITU CHRISTOPHER CABER v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 424/2019

[2020] HKCA 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 424 OF 2019

(ON APPEAL FROM HCAL 1219/2018)

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J U D G M E N T

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Hon Marlene Ng J (giving judgment of the court):

1.  On 23 April 2020, this court (Lam VP and Marlene Ng J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 11 September 2019 refusing leave to the applicant to apply for judicial review.  The applicant sought to review the decisions of the Director of Immigration (“Director”) rejecting his non-refoulement claim as well as the decision of the Torture Claims Appeal Board (“Board”) upholding the Director’s decisions.

2.  The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in our judgment.[1]  We shall not repeat them here.

3.  On 6 May 2020, the applicant filed a Notice of Motion for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to file for further appeal because the court did not assess the Immigration Department’s decision fairly. It is just a reiteration of the Immigration Department’s decision.”

4.  On 6 May 2020, the applicant acknowledged receipt of the written directions by the Registrar of Civil Appeals as follows:

“Upon the filing of the notice of motion, the directions set out in paragraph 3 of Practice Direction 2.1 apply automatically. The relevant parties shall comply with the directions. In case of ex parte appeal, the appellant shall comply with the directions insofar as the same are applicable to him/her as the applying party.

In the event that the court decides to give any other direction upon consideration of the notice of motion, the party(ies) will be notified.”

5.  Paragraph 3 of Practice Direction 2.1 provides inter alia as follows:

“Subject to any direction or order made by the Court, all leave applications shall be dealt with and determined on paper without an oral hearing. Unless otherwise directed, the following directions shall apply automatically upon the filing of the Notice of Motion seeking leave to appeal:

(a)  The Applicant shall lodge with the Court 3 sets of skeleton submissions …… in support of the leave application ……”

6.  The applicant is therefore required to lodge written submissions in support of his leave application by 20 May 2020.  To date, the applicant has not lodged any written submissions.

7.  Pursuant to paragraph 3 of Practice Direction 2.1, the Notice of Motion shall be determined on paper only without an oral hearing unless the court otherwise directs.  Having considered the applicant’s Notice of Motion, we see no reason to depart from the usual practice of determination of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed/lodged.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484 provides that leave to appeal to the Court of Final Appeal shall be granted at the discretion of the Court of Appeal or the Court of Final Appeal if the question in the appeal involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine.  Nor is any such question apparent to us from the matters he has raised.

9.  As the Judge explained in the Form CALL-1,[2] it is clear from Re Moshin Ali [2018] HKCA 549 that the decisions of the Director are not susceptible to judicial review as the applicant has appealed/ petitioned to the Board from such decisions.  There is no error in the Judge’s dismissal of the applicant’s application for leave to apply for judicial review against such decisions.

10.  Further, the grounds stated in the Notice of Motion are basically a repetition of the grounds of appeal relied on by the applicant in his appeal to this court.  Such grounds and arguments by the applicant have already been dealt with by this court in [13]-[20] of our judgment.  The bare assertion by the applicant that our judgment is mere reiteration of the decisions of the Director does not identify any error in our judgment, and is not a valid ground of appeal.  Indeed, the applicant has not given any particulars of how we have overlooked the grounds he relied on in his appeal.  As said, we have given reasons at [13]-[20] of our judgment for dismissing the grounds of appeal identified at [9] of our judgment.

11.  In our view, the grounds raised by the applicant are not reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

12.  For these reasons, the Notice of Motion filed on 6 May 2020 is dismissed.