RE SHAFIQ MUHAMMAD

CACV 586/2019

[2021] HKCA 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 586 OF 2019

(ON APPEAL FROM HCAL NO 854 OF 2018)

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J U D G M E N T

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Hon Toh J (giving the Judgment of the Court):

1.  On 8 December 2020, this court (Barma JA and Toh J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 6 December 2019 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 26 January 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The High Court judge refused my leave to apply for judicial review. Now I have no way to stay in Hong Kong, but it is impossible for me to return. So I want it to go to the Court of Final Appeal, please accept my apply for the Final Appeal.”

4.  In the affirmation dated 26 January 2021, the applicant deposed that:

“Affirmation for going to the Court of Final Appeal for my appeal to grant my leave to apply for judicial review.”

5.  Because the applicant failed to comply with the direction made by the Registrar of Civil Appeals on 27 January 2021, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s notice of motion and affirmation, 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.

7.  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.

8.  The applicant only advanced one ground for the application for leave to appeal, namely that it is “impossible” for him to return.  The applicant did not explain why it is impossible for him to return but we note that in the Notice of Appeal, the applicant claimed he will be killed upon his return.  Assuming this is the impossibility relied upon by the applicant, we have already addressed the alleged danger to the applicant in [13] of our judgment.  In gist, the Board has already rejected the claim by the applicant as incredible and the judge did not find any public law error in the Board’s Decision.  Further, it was not a valid ground for seeking leave for judicial review by itself.  In our view, this ground is not reasonably arguable before the Court of Final Appeal.

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 26 January 2021 is dismissed.