RE HAIDER ALI

CAMP152/2019

[2021] HKCA 613

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 152 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 138/2017)

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J U D G M E N T

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

1.  On 30 December 2020, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 10 November 2017 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 20 January 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“…I arrived in Hong Kong in 2009. I have spent half my life in H.K. This is clear incompetence of the Director of Immigration. He spent twelve (12) years for investigation and self imposed Decision…

The Director of Immigration did not deny my request. Nor did he seek information from Pakistan about my request.

Verify for justice judge me in the light of the investigation and the way of the details from Pakistan.

My request need to be reconsidered. The case of forced to leave the H.K. for self imposed reasons by immigration. I am not satisfy of the Director of Immigration non his self impoased decision.

I came to Hong Kong in the struggle to save my life. I still believed that my life is in danger in Pakistan.

I don’t want die for no reason!”

4.  The applicant lodged a written submission in support of the application on 2 February 2021.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return. He repeated his complaint about the Director’s decision in the Notice of Motion and claimed that he has “audio video evidence of incompetence of this sectors”.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

6.  The matters stated by the applicant do 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 for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

7.  The applicant did not raise any of the grounds in this application when he renewed his application for extension of time to appeal before us.  As we have explained before, 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 generally 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] Further, none of these grounds is related to an error in our judgment and they are therefore not viable grounds of appeal.

8.  As for the bare assertion that it is unsafe for the applicant to return, the Board dismissed the appeal to the Board on the ground that the applicant’s case was not credible.  The applicant has failed to establish any public law error in the Board’s Decision.

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

10.  For these reasons, the Notice of Motion dated 20 January 2021 is dismissed.

The applicant acting in person

CAMP152/2019

[2020] HKCA 1079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 152 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 138/2017)

________________________

________________________

___________________

J U D G M E N T

___________________

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock given on 10 November 2017 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 6 February 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 25 August 2015 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong on 4 January 2009 illegally and was arrested by the police on 2 March 2009 (although he claimed to have surrendered to the police, see [1] of CALL-1 Form).  He lodged a non-refoulement claim on 7 March 2009. 

3.  The applicant’s claim was based on threats from a group called Jaish-e-Mohammed. The details of the applicant’s claim have been summarised by the judge at [5] to [9] of the CALL-1 Form.

4.  By a Notice of Decision dated 25 August 2015 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 17 November 2016, the Board dismissed the appeal on 6 February 2017 (“Board’s Decision”).  The Board’s Decision covered the three grounds in the Director’s Decision and additionally the risk under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR 2 risk”) for non-refoulement protection. 

6.  At [35] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board also held at [24] that state protection was available and at [19] that internal relocation was viable.

The judge’s decision

7.  The applicant filed a Form 86 on 13 April 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 13 April 2017, the applicant deposed that:

“I am never agreed to [the Board’s Decision]. Why there are wasting my time about eight years something. Who allows them do that for me. I have file (No.B) page.B 74 this all file mistake from Duty Lawyer Service. I have evidence video audio recording which they are accept they do mistake”

9.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [20] to [22] of the CALL-1 Form:

“20. I have considered with rigorous examination and anxious scrutiny the papers of this application. I find the adjudicator’s decision to be without fault. This finding also applies to the hearing before the Director. The applicant’s affirmation sets out no grounds to consider.

21. Despite the lack of grounds, I have considered whether there was any error of law by the adjudicator or the Director. I have considered whether there is any evidence of procedural unfairness. There is no evidence decision-makers have not adhered to a high standard of fairness. I conclude the substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

22.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicant had 14 days to lodge an appeal.  He failed to do so.  By a summons dated 15 November 2018, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ KW Lung on 19 June 2019.

12.  By a summons dated 3 July 2019, the applicant renewed his application for an extension of time to appeal before this court, saying only that “I just want to appeal and I just want if court have time please watch this DVD with translator and after decide what I say is there or not immigration right or I am you decide, thank you.  I am waiting for justice.”  In the affirmation filed on the same day, he asked for the same.

13.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 30 July 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

Discussion

14.  Having considered the papers, we are satisfied that this application can properly be dealt with on the papers without the need for an oral hearing.

15.  The applicant did not provide any explanation for his delay in bringing the intended appeal, he also did not advance any ground of appeal.  No DVD has in fact been lodged with his application.

16.  In the absence of any identifiable grounds of appeal, pointing to some error on the part of the judge, we see no prospect of success in the intended appeal, and will not grant an extension of time for a hopeless appeal.  The summons of 3 July 2019 is dismissed accordingly.

17.  We are also of the view that the application is totally without merit.  Pursuant to Order 59 Rule 2A(8), we make an order that no party may request this determination be reconsidered at an oral hearing inter partes.