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

CACV 344/2020

[2021] HKCA 682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 344 OF 2020

(ON APPEAL FROM HCAL NO 489 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  On 10 February 2021, this court (Barma JA and S T Poon J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 28 July 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

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

3.  The applicant subsequently applied, by a notice of motion dated 22 February 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. I submitted a disc to High Court which had evidence of police corruption and no protection for me it was in response to Appeal Board who said there is enough protection please consider that.

2. There was no representative from defendants during my hearing even though they made mistakes in their decision I wanted to hear the defendants what do they say about the claims I made but nobody showed up.

3.  I have worse possible situation in my country due to COVID-19 I can’t go back and die of a disease please consider that as well.”

4.  The applicant lodged a written submission in support of the application on 7 April 2021.  In the written submission, the applicant contended that:

(1)  The Board accepted he may be tortured upon his return but held that relocation was viable.  The applicant claimed that he would be found within a short time upon his return because his enemies have a strong information network;

(2)  The court should consider the videos and medical report submitted by him;

(3)  The applicant has a police report related to his case but he needs time to get it;

(4)  The applicant suffers from stress because he had been waiting for justice in his case for 7 years; and

(5)  His wife is a Hong Kong citizen and she cannot relocate to Pakistan because of the applicant’s circumstances.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to 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, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised. 

7.  The applicant invited this court to consider the videos and medical report submitted by him and to give him time to file a copy of the police report.  As we have explained in [22] – [23] of our judgment, the videos provided by the applicant have already been considered by the judge and he has not identified any error in the judge’s decision.  As for the medical report and the police report, the applicant did not explain in sufficient details how they are related to a public law error in the Board’s Decision or their relevance to his leave for judicial review application.  In our views, these grounds are not reasonably arguable before the Court of Final Appeal.

8.  As for the other grounds relied on by the applicant, those grounds are not related to an error in the decision by the judge or our judgment and are therefore not viable grounds of appeal (see [16] of our judgment).  These grounds are therefore also not reasonably arguable.

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  For these reasons, the notice of motion dated 22 February 2021 is dismissed.