HUSSAIN BABAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 214 /2020

[2021] HKCA 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2020

(ON APPEAL FROM HCAL NO 1008 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 application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP and Au JA) handed down on 5 February 2021 ([2021] HKCA 146) dismissing his application for relief from sanction for failing to observe an unless order.

2.  The applicant’s application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board(“the Board”) and the Director of Immigration (“the Director”) concerning his non-refoulement claim was refused by Deputy High Court Judge K W Lung on 17 June 2020^[1].

3.  He filed a Notice of Appeal against the decision of the judge on 23 June 2020.  On 21 July 2020, the Registrar of Civil Appeals directed him to lodge appeal bundles on or before 17 August 2020.  He did not comply with the direction.  The Registrar made a further direction on 29 September 2020 that he should lodge the bundles on or before 22 October 2020, failing which the matter would be referred to the Court of Appeal for consideration of the appropriate sanction, including the imposition of an unless order.  He again failed to comply with this direction. 

4.  By an unless order made by Kwan VP on 2 November 2020, the applicant was directed to lodge the appeal bundles by 4 pm on 16 November 2020, failing which the appeal would be dismissed immediately without further order (“the Unless Order”). 

5.  As the applicant did not lodge any appeal bundle by the time stipulated pursuant to the Unless Order, his appeal was dismissed on 16 November 2020.

6.  On 27 November 2020, he filed a summons to apply for relief from sanction for failing to observe the Unless Order.  His application was dismissed by the Court of Appeal on 5 February 2021 as it was considered there was no good reason for the failure to comply with the Unless Order and the appeal has no merits.

7.  The applicant filed a Notice of Motion on 16 February 2021 for leave to appeal to the Court of Final Appeal and lodged his written submission on 26 February 2021.

8.  Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar directed on 19 February 2021 that the Notice of Motion shall be determined on paper only without an oral hearing.  Having considered the Notice of Motion and the written submission, we think it appropriate to determine this application on paper.

Grounds of appeal

9.  The applicant stated the following grounds in his Notice of Motion:

(1)     The judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director in refusing his application for judicial review.

(2)     There is some error in law in the decision.  The decision maker just relied on the Country of Origin Information (“COI”) and the applicant’s facts which favour the rejection of his claim.

(3)     Actual life occurs differently from the situation mentioned in the COI.  The officer and the courts ignored the overwhelming evidence of the violence towards minorities searching for unrealistic silver lining.

(4)     The judge did not apply the law properly.

10.  His further submission in writing may be summarized as follows:

(1)     High standards of fairness are required in the determination of a torture claim.

(2)     The Board acted in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Discussion and disposition

11.  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.

12.  The applicant’s grounds of appeal are just bare assertions without particulars or evidence in support.  His grounds and submissions do not constitute valid grounds for granting leave to appeal to the Court of Final Appeal.  In particular, he has not demonstrated that the Court of Appeal was wrong in dismissing his application for relief from sanction. He 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).

13.  We therefore dismiss the application for leave to appeal to the Court of Final Appeal.