RE KHAN AMIR DAD

CAMP 154/2019

[2021] HKCA 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 154 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 786 /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 Josiah Lam (“the judge”) on 21 May 2018 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 decisions 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 5 January 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. The [judges] were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for judicial review.

2. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favor on rejecting my claim.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

4.  The applicant lodged a written submission in support of the application on 18 January 2021.  In the written submission, the applicant submitted that:

(1)  the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases;

(2)  the Board failed to properly assess his credibility; and

(3)  the Board’s decision was Wednesbury unreasonable.

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 the matters in the Notice of Motion when he renewed the extension of time to appeal application before this court.  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]

8.  The written submission dated 18 January 2021 is substantially similar to the submission filed on 22 July 2019.  As we have held in [16] – [17] of our judgment, those grounds are not viable grounds of appeal and they would also fail for lack of particulars.  In our view, those grounds are not reasonably arguable before the Court of Final Appeal.

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 5 January 2021 is dismissed.

The applicant acting in person

CAMP154/2019

[2020] HKCA 1078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 154 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 786/2017)

________________________

________________________

___________________

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 Josiah Lam given on 21 May 2018 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 13 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 23 October 2015 and 25 January 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Pakistan.  He entered Hong Kong illegally and was arrested by the police on 25 May 2012.  He lodged a non-refoulement claim on 27 May 2012. 

3.  The applicant’s claim was based on threats from the family of a girl he met.  The details of the applicant’s claim have been summarised by the judge at [2] to [9] of the CALL-1 Form.

4.  By a Notice of Decision dated 23 October 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.  By a Notice of Further Decision dated 25 January 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 March 2017, the Board dismissed the appeal on 13 October 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  The Board found that the applicant was not at risk from any of the proscribed harm upon his return.  The Board was also satisfied at [142] that state protection would be available for the applicant and that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 19 October 2017 which contained the following grounds for judicial review, summarised below:

(1)  the Director had not properly considered state acquiescence and unduly decided on that issue;

(2)  the Director failed to attain the high standards of fairness and rendered unreasonable decisions; 

(3)  the Board failed to make sufficient inquiry; and

(4)  the Board failed to give the applicant sufficient chance to submit relevant evidence.

9.  In his affirmation in support of the leave application dated 19 October 2017, the applicant exhibited the relevant documents.

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 [35] to [43] of the CALL-1 Form:

“35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

37. The Applicant’s complaints against Director and the Adjudicator are vague. In court, he was asked to elaborate or particularise his complaints. He could not. He just said it was still dangerous for him to go back to Pakistan.

38. I have reviewed the Director's decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.

39. I am satisfied the immigration officer on behalf of the Director had duly considered the issue of state acquiescence. She had proper basis to conclude there was no state acquiescence in the Applicant’s case. Her findings, conclusions and decisions were not Wednesbury unreasonable. She had attained the high standards of fairness required of the Applicant's claim.

40. As to the Applicant's complaints against the Adjudicator, there is no evidence to show the Adjudicator failed to make sufficient inquiry or the Applicant was deprived of any chance to submit evidence for his claim. The Adjudicator had also attained the high standards of fairness required of the screening process.

41. The Applicant’s complaints against the Director and the Adjudicator are groundless.

42. In my judgement, the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator, who had each engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

43.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the 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 12 April 2019, the applicant sought leave to appeal out of time.  His application was dismissed by DHCJ KW Lung on 13 June 2019.

12.  By a summons dated 3 July 2019, the applicant sought leave to appeal against the decision of DHCJ KW Lung.  We shall treat the application as a renewed application for an extension of time to appeal before this court.  The applicant did not identify any ground of appeal in the summons.  In the accompanying affirmation, the applicant simply asserted that he was given to understand that there was a good ground of appeal, without specifying what that ground might be.

13.  In his skeleton submissions lodged on 22 July 2019, the applicant referred to a number of cases on high standard of fairness without explaining their relevance to the present application.  He also submitted that the Board acted in a procedurally unfair manner when it dealt with the appeal without properly assessing the credibility of the applicant.

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 claims that the delay in bringing the intended appeal was due to his incarceration at an immigration centre.  We would accept this reason for delay, notwithstanding that the delay was substantial, and consider the merits of the intended appeal.

16.  The affirmation filed on 3 July 2019 does not actually identify any ground of appeal.  The points made in the written submission are wholly general and lacking in particulars, and are therefore not viable grounds of appeal.

17.  In any event, the written submission complains only of general errors on the part of the Board, but does not identify any error on the part of the judge.  It is for this reason also not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.  Having examined the judge’s decision, we can see no error in it.

18.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal, and the summons of 3 July 2019 is dismissed accordingly.

19.  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.

The applicant acting in person