RE BHAUYA MOHAMMAD SATTAR

CACV 348/2018

[2019] HKCA 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 348 OF 2018

(ON APPEAL FROM HCAL NO. 694 of 2017)

________________________________

Re

BHAUYA MOHAMMAD SATTAR

Applicant

________________________________

Before:

Hon Chu, Barma and Poon JJA in Court

Date of Judgment:

15 April 2019

________________

J U D G M E N T

________________

Hon Chu JA (giving the Judgment of the Court):

1.  On 27 December 2018, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 17 July 2018 refusing him leave to apply for judicial review.     

2.  On 31 December 2018, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission to support his application. 

3.  Having considered the applicant’s notice of motion, affirmation and submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

5.  The Notice of Motion stated that: (i) it is not true that there is no substance in the grounds of the application; (ii) the applicant did not complain about the poor performance of the duty lawyer because he feared he would be picked out by the adjudicator for “misappropriating”; and (iii) the applicant genuinely did not have enough time to address the bundle.

6.  The applicant’s affirmation set out two grounds to support his application, namely, (i) the Court was wrong in law in holding there was no state acquiescence or involvement; and (ii) The Court failed to establish the details of the current situation in Bangladesh. 

7.  The applicant’s written submission recited the background and basis of the applicant’s claim, some provisions in the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law as well as passages in cases on state acquiescence and Wednesbury unreasonableness.  It also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the decision had the effect of finally disposing of the applicant’s claim, making him liable to be removed.  It further argued that under the common law there are minimum standards of procedural fairness, and a decision maker was under a duty to act fairly, citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 383D; Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.    

8.  All the matters stated in the Notice of Motion, the affirmation and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

9.  Firstly, the points put forward by the applicant relate only to the circumstances of the case, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Secondly, the applicant’s appeal to this Court was dismissed as being not validly constituted because he has failed to comply with section 14AA of the High Court Ordinance, Cap. 4 by first applying to the Judge for leave to appeal against her decision refusing to extend the time for bringing judicial review (see [12] of our Judgment).  The applicant has not sought to challenge this since none of his grounds and arguments has addressed this point. Thirdly, other than the ground about state acquiescence, all the other grounds raised in the Notice of Motion and the affirmation were neither argued before the Judge nor in the appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.[2]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]      

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.

 
 

(Carlye Chu)	(Aarif Barma)	(Jeremy Poon)
Justice of Appeal	Justice of Appeal	Justice of Appeal

  

The applicant, unrepresented, acted in person.

CACV 348/2018

[2018] HKCA 977

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 348 OF 2018

(ON APPEAL FROM HCAL NO. 694 of 2017)

________________________

RE

BHAUYA MOHAMMAD SATTAR

Applicant

________________________

Before: Hon Chu, Barma and Poon JJA in Court

Date of Judgment: 27 December 2018

________________

JUDGMENT

________________

Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 17 July 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 9 June 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 27 January 2016 and 13 December 2016 rejecting his non-refoulement claim.  

2.  The appeal was listed to be heard on 14 December 2018.  The applicant was directed to lodge a skeleton argument by 16 November 2018 and also warned that if he failed to do so, he would be deemed to have waived his right to have an oral hearing for the appeal and the hearing date would be vacated with the appeal being determined on paper.  The direction and the warning was communicated to the applicant in the Notice of Hearing dated 31 October 2018.

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.

4.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 17 May 2013.  He made a non-refoulement protection claim based on his fear of being harmed or killed by supporters of the Awami League (“AL”) because he was a supporter of the Bangladesh Nationalist Party (“BNP”) and had injured a leader of AL. 

5.  The applicant’s case was set out in details in the decisions of the Director and the Board, and summarised by the Judge in [6] to [12] of the Form CALL-1 dated 17 July 2018, [2018] HKCFI 1539.  It is not necessary to repeat it here.

6.  By two decisions dated 27 January and 13 December 2016, the Director rejected the applicant’s claim.  The first decision covered the torture risk^[1], the BOR 3 risk^[2] and the persecution risk^[3] grounds, and the second decision was an assessment of the BOR 2 risk^[4].

7.  The Board heard the applicant’s appeal against the Director’s decisions on 19 January 2017.  By its decision dated 9 June 2017, the Board dismissed the appeal.    

8.  On 28 September 2017, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the Board’s decision. As requested by the applicant, an oral hearing was held on 27 February 2018 to hear the leave application.

9.  The applicant’s application for leave to apply judicial review was out of time, being more than three months from the date of the Board’s decision[5].  The applicant did not apply for an extension of time, nor did he give any explanation for the delay in his affirmation.  At the hearing before the Judge, he said he was not aware his application was late as he relied on his friend to do the application. 

10.  Having considered the applicable legal principles, the Judge refused to extend the time for making the application and dismissed the application for leave to apply for judicial review.  The Judge gave her reasons in [4] and [5] of the Form CALL-1.  The Judge nevertheless went on to consider the merits of the applicant’s application and concluded that the intended judicial review had no prospect of success.  The Judge’s analysis of, and reasons for, rejecting the grounds of judicial review, were set out in [19] to [25] of the Form CALL-1.

11.  The applicant filed a Notice of Appeal together with an affirmation on 27 July 2018.  His affirmation raised two grounds of appeal, namely, (1) the Judge was wrong in law to hold that there was no state acquiescence or involvement; and (2) the Judge failed to provide detailed reasons to support her decision.  There is also an exhibit A to the applicant’s affirmation, which gave an account of the applicant’s case and the relevant law as well as setting out nine general grounds for judicial review.

12.  Section 14AA of the High Court Ordinance, Cap. 4 provides that no appeal shall lie to the Court of Appeal from an interlocutory judgment or order of the Court of First Instance in any civil cause or matter unless leave to appeal has been granted.  The Judge’s refusal to extend the time for the applicant to make the application for leave to apply for judicial review is interlocutory in nature: see Kwok Cheuk Kin v Leung Chun Ying[2018] HKCA 419.  In accordance with section 14AA, the applicant must first apply to the Judge to seek leave to appeal from her decision before he can put in an appeal in the Court of Appeal.  As he has not applied to the Judge, there is no leave for him to appeal to the Court of Appeal.  This being the case, the present appeal is not validly constituted and has to be dismissed.         

13.  In any event, the grounds of appeal are entirely misplaced.  The Judge did not make any holding on state acquiescence or involvement.  Nor can it be said that the Judge did not give sufficient reasons for her decision.    

14.  For the above reasons, we dismiss the appeal.

(Carlye Chu)	(Aarif Barma)	(Jeremy Poon)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acted in person.