FARRUKH ZAIB v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

CACV 299/2019
and CAMP 301/2019

[2020] HKCA 577

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 299 OF 2019

(ON APPEAL FROM HCAL 670/2017)

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IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 301 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 670/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  On 8 June 2020, the Applicant filed his Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 4 June 2020.

2.  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 (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.  The Notice of Motion set out the following as grounds for leave to appeal to the CFA:

“ 1. My Notice of Appeal CACV 299/2019, it is ordered that my Appeal be struck out and dismissed because i was filed my Notice of Appeal out of time. then my Summons for leave to Appeal dismissed on 27 November 2019, which ordered dated 4^th June 2020.

2. My reasons that i was late to file my Notice of Appeal, because i was thought to return home, after the problem started in my country in mid 2019, i was fear to return to my country and this is the reasons i was late to filed my Notice of Appeal.” [sic]

4.  In his written submissions of 22 June 2020, the Applicant reiterated his case on the delay in his appeal to this Court.  He also alleged that the Director and the TCAB failed to assess his case properly, in particular, failing to give due regard to:

“ (a) the fact is I was received death threats from my enemies and they are still looking for me to take revenge against me, my life is too dangerous.

(b) the fact is My Claim is based on a true story of my life, the Decision maker didn’t observe my fear so well, may be my risk is private and personal dispute but my life would be too risk if i return to my country.”.

5.  The issue of delay had been duly considered both by DHCJ Bruno Chan and this Court.  The repetition of the Applicant’s case in that regard cannot give rise to viable grounds for submitting the case to the CFA.

6.  As regards the alleged failure in the assessment by the Director and the TCAB, the alleged death threats had not been referred to at the application before this Court nor before DHCJ Josiah Lam or DHCJ Bruno Chan.  The Applicant had not produced any evidence to the Court to support the allegation.  This Court would not act on bare and general assertions.

7.  The issues arising in this case are fact-sensitive ones relating to the specific circumstances of the case.  We do not consider that there is any question of great general or public importance or otherwise ought to be submitted to the CFA for decision.

8.  For these reasons, we refuse to grant leave to appeal to the CFA.  We would dismiss the Applicant’s Notice of Motion accordingly.