MD IBRAHIM SHEIKH alias MD IBRAHIM SHAKH v. THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 150/2019

[2019] HKCA 1187

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2019

(ON APPEAL FROM HCAL 1589 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Yau J (giving the Judgment of the Court):

1.  By a judgment dated 6 August 2019 (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Deputy Judge”) given on 13 March 2019 dismissing his application for leave to apply for judicial review (“the Deputy Judge’s Decision”).  The subject-matter of the intended judicial review is the decision of the Torture Claims Appeal Board (“TCAB”) given on 2 August 2018 dismissing the appellant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 February 2018 rejecting the applicant’s non-refoulement claim.  

2.  The facts and issues in the appeal, as well as reasons for dismissing it, are set out in the Judgment and the Court is not going to repeat them here.  The facts and issues in the appeal, as well as reasons for dismissing it, are set out in the Judgment and the Court is not going to repeat them here. 

3.  On 20 August 2019, the applicant filed a Notice of Motion applying for leave to appeal the Judgment to the Court of Final Appeal.  

4.  In the Notice of Motion, the applicant simply stated that he had strong cause for his application for leave to apply for judicial review and the Court of Appeal had no ground to dismiss his appeal. 

5.  In his written submission filed on 5 September 2019, which is 2 days later than the deadline set by the Registrar, the applicant set out the following grounds:

(a) He was given a short time to prepare for the hearing in the TCAB;

(b) He was not assisted by a lawyer during the hearing;

(c) The interpreter in the hearing was bad, not interpreting everything he said;

(d) The adjudicator of the TCAB was not impartial and was determined to reject his claim; and

(e) If he was to be returned to his country, he would kill himself rather than being killed by his enemy back home. 

6.  Having considered the applicant’s Notice of Motion and written submission, this Court proceeds to consider this application on papers without any oral hearing pursuant to paragraph 3 of Practice Direction 2.1.

7.  Grounds (a) of the applicant’s written submission has been fully considered and then rejected by the Judge.  This Court has found no errors in the decision of the Judge and the reasons are set out in paragraphs 31 and 32 of the Judgement.  

8.  Grounds (b) and (d) are raised for the first time in the applicant’s written submission.  For Ground (b) the applicant has not specified which hearing he is referring to.  He was not legally represented during the hearings in the TCAB, Court of First Instance and this Court.  There are, however, plenty of authorities saying that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the screening process and court proceedings: see, for example, Re Ahmed Syed Rafiq CACV 272/2017. 

9.  As regards Ground (d) no particulars are given in what way the adjudicator was biased.  He has never raised such a complaint before setting it out in his written submission.  On the contrary, he had confirmed during the hearing before the Judge that he had had a fair hearing before the adjudicator of the TCAB.  This ground clearly cannot help his present application. 

10.  Ground (c) was raised for the first time during the appeal hearing before this Court and at that time no particulars were given.  In his written submission he specifies for the first time the basis of his allegation that the interpreter took only 2 minutes to interpret into English what he said in 10 minutes in Bengali.  The difference in time is no doubt an estimation only of the appellant and is hardly a convincing ground to support his allegation.  This issue has been dealt with by this Court in paragraph 29 of the Judgement. 

11.  Ground (e) is clearly not a valid ground of application. 

12.  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. 

13.  None of the grounds raised by the applicant identifies any errors in the Judgment.  They are not viable grounds and do not involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  There is also no basis on which this Court should otherwise grant leave to the applicant.  The statutory criteria for granting leave to appeal to the Court of Final Appeal are not met. 

14.  Accordingly, this Court refuses to give the applicant leave to appeal to the Court of Final Appeal and dismisses his Notice of Motion.