RE RAHEES BAVER KHAN

CAMP 136/2019

[2020] HKCA 846

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 136 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 381 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Chu JA giving the Judgment of the Court:

1.  On 18 November 2019, this Court (Chu and Au JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan given on 28 February 2019 refusing him leave to apply for judicial review.    

2.  On 28 September 2020, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite directions given by the Registrar of Civil Appeals, the applicant has not put in any written submission to support his application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s notice of motion is late by more than eight months, which is very serious delay.  The applicant has provided no explanation for his delay.  He only stated in his affirmation that he believed the merits of his ground of appeal constitute sufficient justifications for the court to exercise its discretion to allow him to appeal out of time.  This is hardly satisfactory.

7.  Further, for the reasons given below, we are also not satisfied that the applicant’s intended appeal to the Court of Final Appeal has any merits.

8.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, that 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.

9.  The notice of motion stated that: (1) the judges were wrong as a matter of law for not applying the principle or irrationality to the decision of the Director of Immigration in refusing the applicant’s application for judicial review; and (2) the judges were wrong as a matter of law for not applying the principle of procedural unfairness to the decision of the Director, who was required to give reason for his decision.

10.  These are not viable grounds for granting leave to appeal to the Court of Final Appeal.  No question of great general or public importance, as required by section 22(1)(b) has been identified.  Further, the complaints about errors of law are mere general assertions not supported by any particulars at all.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  As the applicant has failed to explain his delay and the statutory requirement for giving leave to appeal is not met, there is no basis to extend the time for applying for leave to appeal. The Notice of Motion is dismissed.  

The applicant, unrepresented, acted in person.

CAMP 136/2019

[2019] HKCA 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 136 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 381 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  By summons filed on 19 June 2019, the applicant applied for leave to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 June 2019. By that order, the Judge refused to extend the time for the applicant to appeal his decision given on 28 February 2019 refusing to give leave to apply for judicial review. We believe the applicant is in fact seeking leave from this Court to appeal out of time against the Judge’s decision of 28 February 2019, and we have treated his application as a renewed application for leave to appeal out of time.

2.  The applicant had filed an affirmation, and also lodged a written submission in support of 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 Director of Immigration (“the Director”) dated 21 April 2017 rejecting his non-refoulement claim, and the decision of the Torture Claims Appeal Board (“the Board”) dated 26 February 2018 dismissing his appeal against the Director’s decision.

5.  The applicant is a Pakistani national.  He entered Hong Kong illegally and was arrested by the police on 2 August 2009. He later raised a non-refoulement claim based on his fear of being harmed or killed by his village head arising out of a land dispute.

6.  By his decision, the Director rejected the applicant’s claim on the torture risk[1], BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] grounds.

7.  The applicant’s appeal to the Board was heard on 3 November 2017, during which the applicant had answered questions put by the Board.  By its decision dated 26 February 2018, the Board dismissed the appeal.  Principally the Board did not find the applicant’s claim credible as there were serious problems with his account and evidence.

8.  On 8 March 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  At his request, the application was listed for an oral hearing before the Judge.  By the CALL-1 Form dated 28 February 2019, [2019] HKCFI 184, the Judge refused to grant leave to apply for judicial review and dismissed the application.

9.  The 14-day period[5] for the applicant to appeal the decision of the Judge expired on 14 March 2019.  On 29 March 2019, the applicant filed a summons together with an affirmation to apply for leave to appeal out of time.  The Judge heard the application on 9 May 2019, and by his decision handed down on 5 June 2019, [2019] HKCFI 1333, dismissed the application.  The applicant filed the present summons on 19 June 2019.

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 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).

11.  By the time the applicant filed the summons in the lower court for leave to appeal out of time, he was late by about two weeks.  The delay was not insubstantial.  In the supporting affirmation filed in the court below, the applicant said that the letter enclosing the decision was sent to him on 15 March 2019.  The Judge did not accept this because the envelope was not exhibited to the affirmation, and the court’s record showed that the letter was sent to applicant on 28 February 2019.  We are of the view that the Judge was entitled, on the materials before him, to come to this view.  However, what is more important is the prospect of the applicant’s intended appeal.

12.  The applicant did not set out any ground of appeal in his summons.  His supporting affirmation stated that he understood “there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review”, and “he was informed that [the Director] and the Board did not see the grounds to reverse their decisions.” 

13.  In the written submission, the applicant argued that: (1) high standards of fairness are required considering that the applicant’s life is in jeopardy, his fundamental right not to be subjected to torture is at stake and the decision has the effect of finally disposing of his claim rendering him liable to be removed; (2) the Board acted in a procedurally unfair manner in dealing with his case without properly assessing his credibility; (3) an administrative body’s decision could be set aside if it is Wednesbury unreasonable; and (4) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board in dealing with late filing of notice of appeal may consider the reasons stated in the application and the accompanying supporting documents, as well as any other relevant matters.

14.  In our view, the applicant’s intended appeal has no prospect of success.  The arguments in the written submission are general legal propositions and assertion.  It has not been shown how the legal propositions relate to the applicant’s case.  While it complains that the Board acted unfairly, no particulars are given.  Importantly, the arguments do not point to any error in the Judge’s decision and reasons.  They do not amount to viable grounds of appeal.

15.  Given that the intended appeal is unarguable, it would be futile to extend the time to appeal.  Accordingly, we dismiss the applicant’s summons filed on 19 June 2019.

16.  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.

The applicant, unrepresented, acted in person.