RE RASHEL BAPARI

CAMP 105/2018

[2019] HKCA 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 105 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 804 OF 2017)

____________________________

RE:

RASHEL BAPARI

Applicant

__________________________

Before:

Hon Cheung, Chu and Au JJA in Court

Date of Judgment:

10 April 2019

________________________

JUDGMENT

________________________

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

1.  On 4 December 2018, this Court (Cheung and Chu JJA) handed down our judgment^[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 June 2018.

2.  On 17 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 also lodged a written submission to support his 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) 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 applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  Secondly, other than the argument on high standard of fairness, all the matters or grounds set out in the notice of motion, supporting affirmation and written submission were neither argued before the Judge nor before this Court in the application for leave to appeal out of time.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing 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]  Thirdly, the arguments in the written submission are primarily directed at the Board, and not directed at the Judge’s decision and reasons.  Nor are they related to our judgment.         

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.

 
 

(Peter Cheung)	(Carlye Chu)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

  

The applicant, unrepresented, acted in person.

CAMP 105/2018

[2018] HKCA 845

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 105 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 804 of 2017)

__________________________

RE:

RASHEL BAPARI

Applicant

__________________________

Before:

Hon Cheung and Chu JJA in Court

Date of Judgment:

4 December 2018

________________

JUDGMENT

________________

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

1.  By summons filed on 11 July 2018, the applicant seeks leave to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 8 June 2018 refusing him leave to apply for judicial review.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 13 October 2017 dismissing his appeal against the rejection of his non-refoulement claim by the Director of Immigration (“the Director”).

2.  Under Order 59 rule 2A and rule 14A(1) of the Rules of the High Court, Cap. 4A, this Court may determine an application for extension of time to appeal without an oral hearing.  We are of the view that it is appropriate to determine the present application on paper without a hearing, pursuant to Order 59 rule 2A(5)(a).

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 29 December 2013. On 1 January 2014, he raised a non-refoulement claim based on his fear of being harmed or killed by Awami League (“AL”) due to his political affiliation with the Bangladesh Nationalist Party (“BNP”).

4.  The applicant’s case was detailed in the decisions of the Director and the Board, and summarized by the Judge at [2] to [5] of the Form CALL-1 dated 8 June 2018, [2018] HKCFI 1235.  In brief, the applicant joined the BNP in 2006, and was actively involved in putting up posters, distributing leaflets and attending rallies.  Between late 2006 and 2008, a number of violent conflicts broke out between the AL and BNP supporters, during which the applicant was attacked and injured.  Things quieted down in late 2008 with the AL becoming the ruling party.  Violent conflicts broke out again in 2012 when the BNP started organising rallies and protests against the AL.  The applicant took part in these activities and had received injuries. AL supporters also threatened to kill him.  Although reports were made, the police took no action.  In September 2013, after learning that a BNP member had been abducted and the AL people were looking for him, the applicant went into hiding and later left the country.   

5.  By a Notice of Decision dated 13 June 2016 and a Notice of Further Decision dated 12 June 2017, 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 further decision was an assessment of the BOR 2 risk[4] ground.    

6.  The Board heard the applicant’s appeal against the Director’s decision on 14 August 2017.  By a decision dated 13 October 2017, the Board found that the applicant failed to make out a case under any of the applicable grounds and dismissed his appeal.  The Board’s full reasons were set out in [102] to [223] of its decision, which will not be repeated here.   

7.  On 25 October 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  The applicant’s grounds for judicial review were:

(1) His claim had not been properly considered.

(2) He had not been given time to submit further documents in support of his claim. 

8.  On 8 June 2018, the Judge refused to grant leave and gave his reasons in [12] to [15] of the Form CALL-1:   

“12. In the absence of any particulars or specifics put forward by the applicant or any further elaboration by him, there is simply no substance at all in ground (1) to show in what way was his claim not properly considered by the Board. I do not find any merit in this complaint of the applicant.

13. As for his complaint under ground (2) of not being given time to submit further documents in support of his claim, I note that he did produce certain documents to the Board at his oral hearing, but there is no indication that he had requested for time to produce further documents. Even if he did, he did not subsequently up to the time of the Board’s decision some two months after the hearing produce any, nor did he do so even now in his leave application for judicial review before me. I do not find any merit in this ground of the applicant either.

14. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

9.  The 14-day period[5] for the applicant to appeal the Judge’s decision expired on 22 June 2018.  On 11 July 2018, the applicant took out the present summons seeking leave to appeal out of time. 

10.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the Court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted: see: Chee Fei Ming v. Director of Food and Environmental Hygiene [2015] 4 HKC 134; and also Wong Yuk Man v. Ng Leung Sing & Anor [2016] HKCU 157 (HCMP 3217/2015, 22.01.2016). 

11.  The applicant was late by 19 days.  He explained that he received the Form CALL-1 late because the person who had the key to the letterbox was not in town at the time.  We are prepared to accept it. 

12.  We turn to consider the prospect of success of the intended appeal which is a crucial factor in determining whether the court’s discretion should be exercised in favour of extending the time to appeal: Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, and Re Gurung Min Bahadur[2018] HKCA 226. 

13.  The applicant’s summons did not set out any proposed grounds of appeal.  In his supporting affirmation, the applicant gave an account of his personal background, his non-refoulement claim and his grounds for the intended judicial review of the Board’s decision.

14.  In his written submission lodged on 17 August 2018, the applicant gave the following grounds of appeal:

(1)   The Board failed to observe the high standards of fairness.  The appeal was by way of rehearing, hence the Board erred in approaching the appeal by asking whether there was fault in the Director’s decision.  The Board ought to have considered matters such as the conditions of the country of origin.

(2)   The Board failed to adhere to the minimum standards of procedural fairness and the duty to act fairly. 

15.  We note, firstly, that these challenges to the Board’s decision did not form any part of the grounds for judicial review and were not argued before the Judge.  Appeal is not an occasion for an applicant to put forward new grounds and to re-argue the leave application.  The focus of the Court of Appeal in an appeal is the correctness of the first instance judge’s decision and reasons.  It would therefore not be permissible for the applicant to advance these new grounds and arguments in the intended appeal. 

16.  Secondly, the applicant has not identified any error in the Judge’s decision and reasons.  He has not shown any proper basis upon which the Court of Appeal may interfere with the Judge’s decision.  We also do not discern any error in the Judge’s refusal of leave and the reasons he gave for the decision.    

17.  For the reasons stated above, we are of the view that the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to extend the time to appeal.  Accordingly, we dismiss the summons.

18.  Since the application is totally without merit, we further make an order under Order 59 rule 2A(8) of the Rules of the High Court that the applicant may not request our determination to be reconsidered at an oral hearing.

 
 

(Peter Cheung)	(Carlye Chu)
Justice of Appeal	Justice of Appeal

  

The applicant, unrepresented, acted in person.