RE KHAN MOHAMMAD SHADAB

CAMP 75/2018

[2019] HKCA 129

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO.625 OF 2017)

__________________________

__________________________

________________________

JUDGMENT

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

1. On 4 December 2018, 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 16 March 2018.

2. By a Notice of Motion dated 13 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. 

3. Despite the directions given by the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his application.

4. 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.

5. 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.

6. The Notice of Motion set out the following grounds:

(1)  The applicant did not have an oral hearing for his application for leave to apply for judicial review.

(2)  This is essential because the applicant missed the hearing before the Board due to miscommunication.  The applicant should not have to request for an oral hearing owing to the difference in nature of the hearing before the Judge and that before the Director or the Board.

(3) The Court of Appeal should have granted the applicant an oral hearing since he did not have an oral hearing for the application for leave to apply for judicial review as a result of the mistake of the applicant who was not legally represented.

7. The grounds set out in the Notice of Motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

8. Firstly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  The proposed grounds of appeal relate only to the circumstances of the applicant’s case. 

9. Secondly, the proposed grounds are unarguable.  Under Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A, the Judge may determine the application for leave without a hearing, unless a hearing was requested in the notice of application.  The applicant did not request an oral hearing.  The Judge was fully aware that the applicant failed to attend the oral hearing arranged by the Board.  In light of the matters set out in the applicant’s application for leave to apply for judicial review, there is no proper basis to overturn the Judge’s decision to determine the application on paper without holding an oral hearing.  As for the application to this Court for leave to appeal the Judge’s decision out of time, the practice of this Court is to deal with such application on paper.  Having considered the papers filed by the applicant for his application, we did not see any basis to depart from the usual practice and had proceeded to determine the application on paper. 

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

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

CAMP 75/2018

[2018] HKCA 897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 75 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 625 of 2017)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  By summons filed on 25 May 2018, the applicant seeks leave to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 16 March 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 7 July 2017 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 6 April 2016 and 26 January 2017 rejecting his non-refoulement claim.

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.  Despite being twice directed by the Registrar of Civil Appeals and an unless order made on 20 September 2018 by Chu JA, the applicant has not lodged any written submission.  We will therefore determine the application on the basis of the papers already filed with the Court.

4.  The applicant is an Indian national.  He entered Hong Kong on 17 May 2014 and was permitted to stay as a visitor for two weeks until 31 May 2014.  He overstayed and was arrested by the police on 10 June 2014.  He raised a non-refoulement claim on 11 June 2014 based on his fear of being harmed or killed by his girlfriend’s father who disapproved their relationship.

5.  The applicant’s case was set out in detail in the decisions of the Director and the Board, and summarized by the Judge in [3] of the Form CALL-1 dated 16 March 2018, [2018] HKCFI 461 as follows:   

“3. The Applicant is an Indian national. He was born in Kolkota, India on 30 January 1986 and is a Muslim. At the end of 2012, he met and fell in love with a lady called Sangeeta, who is a Hindu. Her family deeply disapproved of the relationship. In June 2013, Sangeeta’s father, brother and four to five unknown males set upon the Applicant and beat him with wooden sticks. He was warned not to see Sangeeta again. They threatened to kill him. He attended a local clinic for medical treatment and was given pain killers and ointment for a swollen right arm and bleeding knee. Thereafter, he reported the matter to the police who were unsympathetic and said that he should not have dated a Hindu. The couple kept their relationship secret until April 2014, when they made plans to marry. On the day of the marriage, Sangeeta was beaten by her father and prevented from attending. A few days later, Sangeeta’s father, brother and four to five unknown males assaulted him with wooden sticks once again and threatened to kill him but the Applicant was able to escape. He once again attended a local hospital and had his injuries bandaged. He was also given pain killers. He did not report the assault to the police on this occasion because of the attitude of the police on the last occasion. Subsequent to these events, the Applicant spoke with Sangeeta who told him that her father wanted to kill him.”

6.  By a Notice of Decision dated 6 April 2016 and a Notice of Further Decision dated 26 January 2017, the Director rejected the applicant’s claim.  The first decision covers the torture risk[1], the BOR 3 risk[2] and the persecution risk[3] grounds and the further decision is an assessment of the BOR 2 risk[4]. 

7.  The applicant appealed the Director’s decisions to the Board.  The Board arranged for an oral hearing but the applicant did not attend.  The Board proceeded to consider his appeal, and by its decision dated 7 July 2017, dismissed the appeal.   The Board’s reasons were set out in [49] to [94] of the decision.

8.  On 15 September 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 did not request an oral hearing.  The Judge considered his application on documents only and refused to give leave for the reasons set out in [10] and [11] of the Form CALL-1 as follows: 

“10. The Applicant complains that:

i. He did not receive any invitation letter by which the Director asked for additional facts or grounds. I presume that the Applicant is referring to the appellate procedure as he had the opportunity to be heard before the Director and was represented at that time. He was thereafter represented in preparing his grounds of appeal. If he did not receive further correspondence, then he could not have been living at the address he was required to live at and he does not submit that he had changed address at any time. In any event, the Applicant does not say in what way he would have wished to add to what was a simple set of facts fully aired before the Director and fully recorded. The Applicant is not further assisted by the fact that he wholly failed to correspond with the TCAB once he had submitted his grounds of appeal.

ii. The Adjudicator relied upon the COI information and previous facts which supported rejection of his claim. As to his second ground of review, the Adjudicator was left with no choice but to deal with the matter on the papers having done everything procedurally, which could be done to give the Applicant an opportunity to attend and be heard. Nevertheless, the Adjudicator considered the Applicant’s case at its highest, giving him the benefit of the doubt but did not find that a case had been made out when applying the legal principles to the facts presented in the best possible light for the Applicant.

iii. The Adjudicator was biased. As to the third ground of review, the Applicant does not say in what way the Adjudicator was biased. A thorough reading of the Decision suggests that the Adjudicator bent over backwards to be fair to the Applicant despite his initial view that the Applicant’s claim was incredible. The fact that he had only the papers in the case to rely upon is to be laid at the door of the Applicant.

iv. The Adjudicator employed a formulaic approach resulting in an unfair assessment of the danger to the Applicant’s life. As to the fourth ground of review, there is inevitably some degree of formula to the application of legal principles to facts in each case. However, the Adjudicator outlined those legal principles and then applied them to the facts peculiar to the Applicant’s case and there was nothing formulaic in the manner in which he did so. There is no question but that the Adjudicator applied an independent and objective approach specific to the Applicant’s case.

v. Refused the appeal without an oral hearing. As for the failure to be given an oral hearing, the Applicant failed to attend on the given date. A notice pursuant to section 15 of schedule 1A of the Immigration Ordinance, Cap 115 and paragraph 11 of the Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme was served upon the Applicant by registered post indicating the TCAB’s intention to determine his appeal in his absence. He was afforded seven days in which to provide a written explanation of his failure to attend. He did not do so. No other contact was made by the Applicant with the Board. The Applicant has not sought to indicate an answer to that in his grounds of review. The Applicant bears a responsibility to reside where indicated in his recognisance. Proper notice was served upon that address. There is nothing within the grounds of review which explains why the relevant documentation would not have reached the Applicant given that he clearly received the Notice of Decision dated 7 July 2017 sent to the same address. There is no inalienable right to an oral hearing. Much will depend upon the particular circumstances of the claim and of the facts submitted. The Adjudicator applied the procedural guidelines fairly and in dealing with the matter on the papers gave every benefit to the Applicant which could be afforded to him. Nevertheless, his claim did not establish the level of risk required.

11. I have considered the papers and grounds 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 did everything within his power to do so to no avail but still considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case, which he failed to do; and enquired into that case appropriately despite that fact.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.”

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 30 March 2018.  On 25 May 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 nearly two months, which is not insubstantial.  He has offered no explanation for the delay in proceeding with the appeal. 

12.  We now turn to consider the prospect of success of the applicant’s intended appeal which is a crucial factor in determining whether the Court should exercise its discretion to grant an extension of time for 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.  In his supporting affirmation filed on 25 May 2018, the applicant gave the following grounds of appeal:

(1)   The Judge was wrong in law in holding that there was no state acquiescence or involvement;

(2)   The Judge failed to provide detailed reason in support of her decision; and

(3)   The sealed order dated 16 March 2018 stated that the order was made “upon hearing the Applicant appearing in person”.  That was wrong because the Judge made the order based on documents only without a hearing.

14.  Ground (1) is misplaced.  Contrary to the applicant’s assertion, the Judge had made no reference to, let alone finding or ruling on, state acquiescence or involvement.  

15.  Ground (2) is unarguable in light of the detailed reasons provided by the Judge in the Form CALL-1.     

16.  As to Ground (3), it is correct that the sealed order contains a clerical error.  The error however does not impinge on the validity of the reasons and the decision given by the Judge.  It is also clear from [2] of the Form CALL-1 that the applicant did not request an oral hearing and his application was considered on papers only. 

17.  For the above reasons, the applicant’s intended appeal has no prospect of success.  This being the case, it would be futile to grant him leave to appeal out of time.  Accordingly, we dismiss the summons.

18.  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.