MUHAMMAD ARIF AMIN MUGHAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 117/2023, [2024] HKCA 1033

On appeal from [2022] HKCFI 2723

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 117 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2937 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (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 15 September 2023 ([2023] HKCA 1049). The Court of Appeal refused to extend time to appeal against the decision of Deputy High Court Judge To dated 5 September 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 5 October 2023. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper.

Grounds of appeal

3.  The applicant stated the following grounds of appeal in the notice of motion filed on 21 September 2023:

(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 of Immigration refusing the 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 and the applicant’s previous facts which were in favour of rejecting the claim;

(3)  Actual life is different from the country of origin information. The officers and the courts prefer to ignore the overwhelming evidence of the violence towards minorities, searching for unrealistic silver lining;

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

4.  In his written submissions, he further contended that high standards of fairness are required in the determination of a torture claim on the part of the decision maker and that the Torture Claims Appeal Board acted in a procedurally unfair manner without properly assessing his credibility.

Analysis and disposition

5.  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.

6.  The applicant’s grounds and submissions in the present application are just bare assertions without particulars and evidence in support. In particular, he lodged the same written submissions as the submissions in his last application, which were duly considered and rejected by the Court of Appeal. The Court of Appeal has given detailed reasons for rejecting these submissions in the judgment dated 15 September 2023 at §§20 to 24. The applicant has not identified any mistakes in the judgment of the Court of Appeal, nor has he raised 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).

7.  For all the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 21 September 2023.