RE SK SIRAJ UDDIN

CAMP65/2019

[2021] HKCA 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 727/2017)

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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 7 May 2020, this court (Yuen JA and Barma JA) handed down a judgment dismissing the applicant’s application for leave to appeal out of time against the decision of Campbell-Moffat J (“the judge”) on 24 August 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 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 22 May 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1.  The learned 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.  The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim. The judge did not apply the law properly.

3.  The decision maker just relied on COI information and my previous facts which were in favour on rejecting my claim.

4.  Actual life occur different situation than mentioned in COI information, officers and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.”

4.  In the affirmation dated 22 May 2020, the applicant deposed that:

“Leave be granted to me to file notice of motion out of time. I was unaware of the procedural regularities as a lay person.”

5.  The applicant lodged a written submission in support of the application on 11 June 2020.  In the written submission, the applicant referred generally to a number of cases on high standard of fairness without explaining the relevance of those cases.  He also referred to section 37ZT of Immigration Ordinance, Cap 115 which relates to the late filing of notice of appeal to the Board, a matter that does not appear to be relevant to his application.

6.  Having considered the applicant’s Notice of Motion, affirmation 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.

7.  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.  

8.  In the written submission, the applicant referred to a number of authorities and to section 37ZT of the Immigration Ordinance without explaining their relevance.  They do not disclose any viable ground of appeal.

9.  As for the ground based on irrationality in the Director’s Decision, this was never raised as a ground of appeal in the summons dated 12 April 2019.  There was therefore no need for this court to consider whether the principle of irrationality had any application to the Director’s Decision.  In any event, this ground lacks particulars and is therefore in our view not reasonably arguable before the Court of Final Appeal.

10.  We also note that none of the grounds advanced in the Notice of Motion, affirmation and written submission have been advanced as a ground of appeal in the application before this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed 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]

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

12.  For these reasons, the Notice of Motion dated 22 May 2020 is dismissed.

The applicant acting in person

CAMP 65/2019

[2020] HKCA 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 727/2017)

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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.  This is an application for extension of time to appeal against the decision of Campbell-Moffat J given on 24 August 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 4 August 2017 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 7 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of India.  He entered Hong Kong on 18 December 2013 as a visitor and was permitted to remain until 1 January 2014.  He surrendered to the authorities on 5 March 2014 and lodged a non-refoulement claim on the same day.  He had since been convicted of 2 drug-related charges.

3.  The applicant’s claim was based on threats from his stepfather, the authorities in India and other parties because of various dealings by the applicant in India. The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 form.

4.  By a Notice of Decision dated 7 April 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 21 July 2017, the Board dismissed the appeal on 4 August 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [42], [51] – [54] of the Board’s Decision, the Board did not accept that the applicant will be subject to any of the proscribed harm upon refoulement.  The Board was also satisfied at [47] – [48] that state protection would be available for the applicant and at [50] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 6 October 2017 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 6 October 2017, the applicant deposed that:

“I…want to apply for judicial review because I didn’t get chance to proof my claim. Firstly, I was not so educated, secondly I was not provided a lawyer for advice. Thirdly they start my claim and finish it on assumption.”

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 [10] to [12] of the CALL-1 form:

“10. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

11. The Applicant has submitted limited grounds of review. In particular, he submits that he was treated unfairly by reason of the fact that he was not provided with legal representation for advice but fails to state at what stage this occurred. In any event he was given every opportunity by the Adjudicator to make representations. The Director of Legal Aid will continue to provide representation to applicants in their appeal if they are of the view there is merit in their case. That assessment is on a case-by-case basis. This ground is not reasonably arguable. Further, the Applicant also asserts that a decision on his case was based upon ‘assumptions’. Unfortunately, the Applicant is no more specific with his explanation as to this ground. I have nevertheless gone on to consider the papers with a view to canvass the possibility that there may be other grounds of review not relied upon by the Applicant given his limited educational background. Based on the assessment of both the Director’s and Adjudicator’s decisions above, I find that the conclusions reached were arrived at in a principled and substantiated manner.

Conclusion

12. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.”

11.  According to the court’s records, a copy of the CALL-1 form and the sealed copy of the deputy judge’s order were sent to the applicant on 24 August 2018.

Application for extension of time to appeal and grounds for appeal

12.  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 18 December 2018, the applicant sought leave to appeal out of time.  His application was dismissed by Campbell-Moffat J on 20 March 2019.

13.  By a summons dated 12 April 2019, the applicant renewed his application for an extension of time to appeal before this court.  Although his summons sought leave to appeal against the judge’s order of 20 March 2019, the applicant should properly have renewed his application in respect of the substantive judgment in the CALL-1 form dated 24 August 2018. We shall treat him as having made that application. 

14.  In his affirmation in support of the same date, the applicant deposed:

“…I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for leave for judicial review.

Additionally, I was informed that the [Director] and the [Board] did not see the grounds to reverse their decisions”

15.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 16 May 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

16.  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.

17.  In the documents filed for the renewed application, the applicant did not provide any explanation for the delay in lodging the intended appeal.  When the applicant sought extension of time from the judge, he claimed that he did not receive the CALL-1 form because he was imprisoned.  The judge did not accept this explanation at [6] of her decision dated 20 March 2019.  Having considered the judge’s reasoning, we agree with the judge that it is not a good reason for the delay. 

18.  We nonetheless go on to consider the merits of the intended appeal.

19.  The affirmation dated 12 April 2019 identifies no viable grounds of appeal.  It refers to what is said to be a good ground of appeal without explaining what it is.  It does not identify any error on the part of the judge.  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.  In any event, having examined the judge’s decision, we can see no error in it.

20.  We therefore do not see any prospect of success in the intended appeal.  We will not grant extension of time for a hopeless appeal.  The summons of 12 April 2019 is dismissed accordingly.

21.  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