RE SARR YAHYA

CACV 377/2020

[2021] HKCA 1101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 377 OF 2020

(ON APPEAL FROM HCAL NO. 513 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 13 May 2021 ([2021] HKCA 669), this Court (Yeung VP and Pang JA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 3 August 2020 in HCAL 513/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“the Board”) given on 12 April 2017 in which the Board confirmed the decisions of the Director of Immigration (“the Director”) given on 4 May 2016 and 3 March 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 24 May 2021, the applicant seeks leave to appeal to the Court of Final Appeal on the following grounds:

“1. The learned 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 my application for Judicial Review.

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the director whereby the Director was required to give reasons justifying the decision.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 25 May 2021, the applicant lodged his written submissions on 7 June 2021.   

4.  In the applicant’s written submissions, he quoted passages from ST v Director of Immigration[1] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board. However, he did not explain and elaborate how the aforesaid cases and legal provisions were relevant to or would assist his case.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on papers only.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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. 

7.  The grounds of appeal set out in the notice of motion did not pinpoint any error or raise any discernible grounds to disturb our judgment and nothing set out in the notice of motion can be construed as valid ground of appeal to the Court of Final Appeal.   Accordingly, the intended appeal is unarguable and bound to fail.

8.  For the reasons that we gave in our judgment, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

9.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

[1] The correct citation should be ST v Betty Kwan.