RE SHARIFUL ISLAM

CACV 414/2018

[2019] HKCA 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 414 OF 2018

(ON APPEAL FROM HCAL NO. 917 of 2017)

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JUDGMENT

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

1. On 21 November 2018, this Court handed down our judgment[1] (“the Judgment”) striking out the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 17 August 2018 on the ground that the appeal was not properly constituted.  The Judge had refused to grant leave to the applicant to apply for judicial review, which was brought out of time and was an abuse of process. 

2. By a Notice of Motion dated 28 November 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission in support of the application.

3. Having considered the applicant’s notice of motion, 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) the decision was unfounded and biased because the Judge relied heavily on country of origin information that did not reflect the true situation in the applicant’s country, (ii) theories on paper is different from actually living in danger; (iii) it would be a miscarriage of justice if the applicant were refouled; and (iv) this court had adopted a fixed formula towards all refugees.

6. The written submission cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed. 

7. What was stated in the Notice of Motion and the written submission does 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, as required by section 22(1)(b).  Further, the matters advanced have no relevance to the Judge’s reasons for refusing his application for leave to apply for judicial review, or to our reasons for striking out his appeal. 

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

9. For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.

CACV 414/2018

[2018] HKCA 820

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 414 OF 2018

(ON APPEAL FROM HCAL NO. 917 of 2017)

________________________

________________________

________________

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 Bruno Chan (“the Judge”) given on 17 August 2018 dismissing his application for leave to judicially review the decision of the Torture Claims Appeal Board (“the Board”) dated 12 May 2017.    

2.  The applicant is a Bangladesh national.  He arrived in Hong Kong on 5 May 2006 and was given permission to remain as a visitor until 19 May 2006.  He overstayed and was arrested by the police on 18 December 2007.  He lodged a non-refoulement claim based on his fear of being harmed or killed by members of the Bangladesh Nationalist Party due to his father’s refusal to quit the Awami League and join their party.  For the purpose of this appeal, it is not necessary to set out the basis of the applicant’s claim in detail.   

3.  By two decisions dated 13 March 2015 and 21 November 2016, the Director of Immigration (“the Director”) rejected the applicant’s claim having regard to all the applicable grounds, namely, torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.  The applicant appealed the Director’s decision to the Board.  By a decision dated 12 May 2017, the Board dismissed the appeal.    

4.  On 30 June 2017, the applicant filed a Form 86 in HCAL 348/2017 to apply for leave to judicially review the Board’s decision.  The application was listed for hearing before Deputy High Court Judge Woodcock on 5 September 2017.  The applicant did not attend the hearing.  By a decision given on 13 October 2017, Deputy High Court Judge Woodcock refused to give leave to the applicant to bring judicial review.

5.  On 20 November 2017, the applicant filed another Form 86 in HCAL 917/2017 to re-apply for leave to judicially review the Board’s decision, relying on grounds that were similar to those in HCAL 348/2017. As in the previous application, the applicant was absent at the hearing of the leave application.  On 17 August 2018, the Judge dismissed the application as an abuse of the court process: see [9] of the Form CALL-1, [2018] HKCFI 1567.

6.  The applicant filed a notice of appeal on 23 August 2018, which said that he would face hardship if he were to return to his home country, and further complained that the news and cases relied on by the Board were not officially recognized, and were hearsay and outdated.     

7.  Evidently, when the applicant made the second leave application by filing the Form 86 on 20 November 2017, more than three months had lapsed since the Board rendered its decision on 12 May 2017. The leave application was accordingly made out of time: see Order 53 rule 4 of the Rules of the High Court, Cap. 4A.  In dismissing the application, the Judge had not extended the time for bringing judicial review against the Board’s decision. 

8.  As held in MI v. Permanent Secretary for Security[2018] HKCA 419, in judicial review cases brought outside the three-month time limit where extension of time was refused, the applicant must first obtain leave to appeal under section 14AA of the High Court Ordinance, Cap. 4 before he can appeal to the Court of Appeal.  Further, under Order 59 rule 2B(1) of the Rules of the High Court, an application for leave to appeal should in the first place be made to the Court of First Instance. 

9.  In the present case, the applicant had not obtained leave to appeal before filing the Notice of Appeal.  Accordingly, the Registrar of Civil Appeals directed on 23 August 2018 that the applicant should lodge written submission as to why the Notice of Appeal should not be dismissed.  In compliance with the direction, the applicant had lodged a written submission.

10.  The applicant stated in the written submission that high standards of fairness was engaged because life and limb were in jeopardy, the fundamental right of not being subjected to torture was involved and the decision had a significant impact on the applicant.  He referred to passages in Secretary for Security v. Sakthevel Prabakar [2005] 1 HKLRD 289, at [43] and [44] and asked that leave to appeal be granted.      

11.  The matters stated in the written submission do not explain the delay.   As the Judge rightly held, this second application for leave to bring judicial review is an abuse of the court process.  The intended appeal against the Judge’s decision has no merit.  For these reasons, leave to appeal should not be given.  We therefore refuse to grant leave under section 14AA.

12.  As there is no leave to appeal, the appeal is not properly constituted.  Accordingly, we order that the Notice of Appeal be struck out and the appeal be dismissed.