RE AHMED TOSIF

CAMP 196/2018

[2019] HKCA 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 196 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 1102 OF 2017)

__________________________

RE:

AHMED TOSIF

Applicant

__________________________

Before: Hon Chu, Barma and Au JJA in Court

Date of Judgment: 7 August 2019

________________________

JUDGMENT

________________________

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

1.  On 30 May 2019, this Court (Chu and Barma JJA) handed down our judgment^[1] refusing to give leave to the applicant to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 31 August 2018 refusing him leave to apply for judicial review.

2.  On 3 June 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal. 

3.  On 5 June 2019, the Registrar of Civil Appeals gave directions for the filing of written submission (“the Directions”).  On 21 June 2019, the applicant lodged with the Court a letter bearing the heading “Skeleton Submission”, together with a 24-page attachment.  By the court’s letter dated 27 June 2019, the applicant was informed that the document did not comply with paragraph 2 of the Directions, and the Registrar of Civil Appeals had directed that unless by 4:00 pm on 9 July 2019 he lodged a written submission in compliance with the Directions, he shall be debarred from lodging any written submission and be deemed to rely only on what was stated in the Notice of Motion.  Despite this, the applicant only lodged a written submission on 18 July 2019. 

4.  Having considered the Notice of Motion and written 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.

5.  The Notice of Motion stated that: (i) there was some error in law in the decision; (ii) the decision maker just relied on country of origin information (“COI”) and facts that favoured the rejection of the applicant’s claim; (iii) the situation was different from what was stated in the COI, but the Court chose to ignore the overwhelming evidence of violence towards minorities; and (iv) the decision was biased and adopted a formulaic approach, and did not assess the danger to the applicant’s life.  

6.  The written submission argued that: (i) high standards of fairness are required in determining torture claims, and that the court’s decision had the effect of finally disposing of the applicant’s torture claim, making him liable to be removed, citing ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289; (ii) a discretionary decision is liable to be set aside if it is Wednesbury unreasonable, citing two UK decisions; and (iii) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board may have regard to the matters set out in paragraphs (8)(a) and (b) of the written submission in dealing with late filing of notice of appeal.  

7.  For the reasons set out below, we are of the view that the Notice of Motion must be dismissed.

8.  In the first place, we have refused to grant leave to the applicant to appeal the Judge’s decision out of time.  Our decision is final and not amenable to further appeal to the Court of Final Appeal: see section 14AB of the High Court Ordinance, Cap. 4; The Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240; and Re Maya Setianingrum Jumbadi (unreported) [2019] HKCA 175 at [7].

9.  In any event, the matters stated in the Notice of Motion and the written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Secondly, the applicant had not given any grounds for his intended judicial review.  Nor had he provided any proposed grounds of appeal in his applications for leave to appeal out of time made to the Judge and to this Court.  His complaint about COI made in the Notice of Motion is a new point, which had not been discussed in either the Judge’s decision or this Court’s judgment.  Likewise, the arguments in the written submission on about the duty to act fairly and the Wednesbury unreasonableness principle are completely new points.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2]  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal.[3]  Thirdly, for the reasons given in [18] of this Court’s judgment, the applicant’s assertion that his life will be in danger is not arguable.  Fourthly, the applicant has provided no particulars to support his assertion that our judgment is biased and unfair.  There is also no basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  Accordingly, we dismiss the Notice of Motion.

(Carlye Chu)	(Aarif Barma)	(Thomas Au)
Justice of Appeal	Justice of Appeal	Justice of Appeal

The applicant, unrepresented, acted in person.

CAMP 196/2018

[2019] HKCA 489

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 196 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 1102 of 2017)

__________________________

RE

AHMED TOSIF

Applicant

__________________________

Before:

Hon Chu and Barma JJA in Court

Date of Judgment:

30 May 2019

________________

JUDGMENT

________________

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

1.  This is the applicant’s renewed application for leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 31 August 2018 refusing him leave to apply for judicial review[1]. The applicant’s previous application for leave to appeal out of time was refused by the Judge on 13 December 2018[2].

2.  The applicant had filed an affirmation and lodged a written submission to support his application.

3.  Under Order 59 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.  Having considered the summons, the affirmation and the written submission, we are of the view that it is appropriate to determine the present application on paper without a hearing.

4.  The applicant’s intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 24 November 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 12 April 2016 and 4 July 2017 rejecting his non-refoulement claim.

5.  The applicant’s claim was set out in detail in the decisions of the Director and the Board. 

6.  Briefly stated, the applicant is an Indian national.  He last entered Hong Kong on 25 May 2014 and was given permission to remain for two weeks as a visitor.  He overstayed.  On 25 June 2014, he surrendered to the Immigration Department and raised a non-refoulment claim based on his fear of being harmed or killed by a group of Hindus associated with the Bhartiya Janta Party.  This was because his friend Ashok had converted to Islam, and the group blamed the applicant for brainwashing him.  They assaulted him in April 2014, which prompted him to leave India.

7.  By his two decisions, the Director rejected the applicant’s claim on all applicable grounds.  The first decision covered the torture risk[3], the BOR 3 risk[4], and the persecution risk[5] grounds, and the further decision dealt with the BOR 2 risk[6] ground.

8.  The applicant’s appeal to the Board was heard on 27 September 2017.  For the reasons set out at [49] to [56] of its decision dated 24 November 2017, the Board dismissed the appeal.  In gist, the Board found the applicant’s case did not meet the requirements of any of the applicable grounds, and that even if he were at risk of being harmed, the risk could be effectively eliminated by internal relocation without undue hardship.

9.  On 18 December 2017, the applicant filed a Form 86 together with a supporting affirmation to apply for leave to judicially review the decision of the Board.  By the Form CALL-1 dated 31 August 2018, the Judge refused to grant him leave to apply for judicial review. 

10.  The 14-day period[7] for the applicant to appeal the decision of the Judge expired on 14 September 2018. On 20 September 2018, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  On 13 December 2018, after hearing the applicant, the Judge dismissed the application.  On 19 December 2018, the applicant filed a summons together with an affirmation in this Court to renew the application for leave to appeal out of time.

11.  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 success 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). 

12.  The applicant was late by six days, which is not substantial.  He explained he did not have a stable postal address for receiving correspondence, hence he received the court’s decision and order late.  We are prepared to accept his explanation.

13.  We next turn to consider the merits of his intended appeal, which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for appeal (Secretary for Justice v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125, Re MK (unreported) HCMP 2609/2016, Islam Raja Rais v. Director of Immigration (unreported) HCMP 881/2017, Re Gurung Min Bahadur[2018] HKCA 226).   

14.  The Judge, when refusing to grant the applicant leave to appeal, gave the following reasons at [11] and [12] of the Form CALL-1:

“11. There were no grounds of review save a statement to the effect that the finding of the Adjudicator was unfair and unreasonable. In essence, the Applicant asks for a re-hearing of his appeal. He has not complained of any specific procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.”

“12. Despite the fact that the Applicant did not submit any proper grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which were open to him on the facts and eminently reasonable.”

15.  The applicant did not give any proposed grounds of appeal in the summons and affirmation filed in the court below.  In the summons and affirmation filed in this Court, the applicant also did not state any ground of appeal.  He merely stated that his life would be in danger if he were to return to India.  In the written submission, the applicant gave an account of his personal background and the facts of his non-refoulement claim. The applicant said his parents told him in their telephone conversations that it was still dangerous for him to return to his home village, and he genuinely feared for his safety.

16.  What the applicant stated in his summons, affirmation and written submission are not viable grounds of appeal.  

17.  Firstly, the applicant has not identified any error in the Judge’s decision and reasons for refusing to grant leave to apply for judicial review.

18.  Secondly, the Board considered that the applicant’s case did not meet the requirements of any of the applicable grounds, and that the risk he feared was localised and confined to his home village.  The Board further found that internal relocation was reasonably available and this would effectively eliminate the risk that he feared.  The applicant had not challenged the findings and reasons of the Board.  In the circumstances, the mere fact that it is still unsafe for him to return to his home village cannot be an arguable ground for judicial review. Neither can it be an arguable ground of appeal.   

19.  The intended appeal is therefore unarguable.  This being the case, it would be futile to give leave to appeal out of time.  Accordingly, we dismiss the applicant’s summons filed on 19 December 2018.

20.  Since the present 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. 

 
 

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

  

The applicant, unrepresented, acted in person.