MOHOMED RAHOOF MOHOMED SAJAHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 306/2022, [2023] HKCA 1079

On appeal from [2022] HKCFI 1202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 306 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2216 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 handed down on 24 February 2023 ([2023] HKCA 215). The Court of Appeal refused to grant extension of time to appeal against the decision of Deputy High Court Judge K W Lung dated 4 May 2022 dismissing the application for leave to seek judicial review against the decision of the Torture Claims Appeal Board concerning the applicant’s non-refoulement claim.

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 20 March 2023. 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 Sri Lanka. He entered Hong Kong illegally on 27 July 2006 and was arrested by the police on 31 January 2007. He had previously made a torture claim which was rejected by the Immigration Department. The applicant’s subsequent petition against the Director of Immigration was rejected on 22 June 2012. The applicant lodged a non-refoulement claim on 8 April 2013 on the basis that he would be harmed or killed due to ethnic and religious conflicts, and risk of torture by triad members, if he is returned to Sri Lanka.

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 6 July 2022[1].

5.  On 19 August 2022, the applicant filed a renewed application for extension of time to appeal. The application was dismissed by the Court of Appeal on 24 February 2023 as he failed to show any prospect of success in his intended appeal.

Grounds of appeal

6.  The applicant stated the following grounds in the Notice of Motion filed on 8 March 2023:

(1)  The applicant gave the supporting documents regarding his problem and the risk but all the documents were disregarded by the Court of Appeal which did not mention his supporting documents but only his delay in filing the summons;

(2)  His father passed away and later his mother also passed away. He has suffered mentally.

7.  His written submissions may be summarised as follows:

(1)  He still has problem in his home country. If he goes back, his life will be in danger.

(2)  The Court of Appeal disregarded the applicant’s supporting documents including the police report and his medical certificate without an oral hearing. He is not satisfied with the decision because he needs to explain the present situation to the judges regarding his problem and the risk to life.

(3)  He does not have any property or any house to live in Sri Lanka. His parents passed away in the hospital without proper treatment and medicine. There is lack of proper treatment and medicine shortage in every hospital in Sri Lanka. This problem can happen to him too if he goes back. He is now alone in Hong Kong and is not feeling well mentally.

(4)  All the above mentioned situations are true and the applicant has never lied to the court or any other department.

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.  The applicant attached the certified translation of the death certificates of his parents to his written submissions. This new evidence was adduced without leave and he did not take out any application for leave to adduce such evidence. Even if he had applied for leave, the court would not grant leave to adduce such further evidence as the conditions established in Ladd v Marshall [1954] 1 WLR are not satisfied. In particular, the applicant failed to show that such evidence could not have been obtained previously for the consideration of the Court of First Instance with reasonable diligence[2], nor can he show that such evidence would or might, if believed, have an important influence on the decision of the court. Therefore, the new evidence will not be considered in this application.

10.  The applicant contended that the court has disregarded his supporting documents. This contention is without basis. The court has considered the warrant of arrest attached to his previous written submissions and dealt with this in paragraph 15 of the judgment dated 24 February 2023. Besides, the Court of Appeal is entitled to determine his application for extension of time to appeal without a hearing on the basis of written submissions only.

11.  All in all, the applicant has not demonstrated that the Court of Appeal was wrong in dismissing his application and he has failed to identify 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).

12.  For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 8 March 2023.