MOHAMMED HAFIZUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 610 /2018

[2019] HKCA 1334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 610 OF 2018

(ON APPEAL FROM HCAL NO 83 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.  By a judgment dated 17 May 2019 ([2019] HKCA 550) (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 20 December 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board dismissing the applicant’s appeal against the decision of the Director of Immigration rejecting the applicant’s non‑refoulement claim.

Background 

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 4 June 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“1. The Judgement of the Judges do not make logical sense at all.

2. The Determination of Appeal/Petition by the Torture Claims Appeal Board was never translated or read back to me. The fairness of a non-refoulement claim should not be limited to just the process of determination, but should rather extend to the Determination itself. It is the basic right of a litigant to understand what was decided against him so that he can make a full review later on. To deprive of the litigant of such right will equal to a deprivation of the right to seek further avenues of appeal or review.

3. The same extends to the judgment of the Court of First Instance. Without knowing the reasons behind the dismissal of my claim, I was deprived of the reasonable opportunity to point out errors in full. As a result of such intentional ignorance in procedural fairness, the burden should thus be shifted on the Judges to help determine the grounds.

4. Furthermore, the lack of BOR 2 risk oral hearing was due to the lack of additional information provided previously, which was as a result of the unfairness in the Director of Immigration’s unilateral decision to ask for further information without referring the case to the Duty Lawyer Service or to provide reasonable language assistance.

5. The Judges (including the Deputy Judge) have therefore erred in determining that there is no unfairness in the lack of oral hearing for my BOR 2 risk.”

5.  On 11 June 2019, Master Au-Yeung directed the applicant to lodge with the court his written submission on or before 18 June 2019.  The applicant failed to lodge his written submission as directed.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers on the basis of the Notice of Motion without any oral hearing.

Discussion

6.  The applicant’s ground on lack of oral hearing has been dealt with by the Deputy Judge in his decision and also by this Court in the Judgment.

7.  Regarding the grounds on no translation of the determination of the Board and the judgment of the Deputy Judge, these were not grounds relied on by the applicant in his application before the Deputy Judge nor in the appeal before this Court.

8.  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.

9.  None of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds. 

10.  In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Judgment.  None of the matters raised by the applicant in the Notice of Motion involves any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we find any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

Disposition

11.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.