FAYAZ MUHAMMAD v. TORTURE CLAIMS APPEAL BOARD

CAMP 275/2022, [2023] HKCA 524

On appeal from [2021] HKCFI 2578

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 275 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2194 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 Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 13 December 2022 ([2022] HKCA 1806). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 2 September 2021 refusing to grant leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning the applicant’s non-refoulement claim[1].

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 28 December 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3.  The applicant is a national of Pakistan. He entered Hong Kong illegally on 27 November 2013 and surrendered to the Immigration Department on 10 December 2013. He raised a non-refoulement claim on 28 February 2014 on the basis that he will be harmed or killed by members of the rival political parties if he returns to Pakistan.

4.  He took out a summons in the court below to seek an extension of time to appeal against the decision of the judge. It was refused by the judge on 7 June 2022[2].

5.  On 26 July 2022, the applicant filed a renewed application for leave to appeal out of time. The application was dismissed by the Court of Appeal on 13 December 2022 as the applicant failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  In the Notice of Motion filed on 13 December 2022, the applicant only stated that the judgments are not good for him so he wants to go to the Court of Final Appeal.

7.  In his written submissions, he reiterated the problem he faced in Pakistan and submitted that the Court of Final Appeal will give him a good decision which will benefit him and all asylum seekers in Hong Kong.

Analysis and disposition

8.  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.

9.  In the present application, the applicant has not identified any error or unfairness in the decision the Court of Appeal. He also failed to demonstrate there is 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.  We therefore refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 13 December 2022.