RE RUHUL QUDDUS SWAPHAN ALIAS S KUDDAS ALIAS RUHUL QUDDUS SWAPAN

CACV 284/2020

[2021] HKCA 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 284 OF 2020

(ON APPEAL FROM HCAL NO. 1831 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving Decision of the Court)  :

I.  Leave to appeal to Court of Final Appeal

1.  On 19 March 2021, this Court (Cheung JA, B Chu and S T Poon JJ)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung given on 13 July 2020 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

3.  The applicant now applies, by a notice of motion filed out of time on 24 May 2021, for extension of time for leave to appeal against our judgment to the Court of Final Appeal.  He was over two months late.  The applicant stated in his notice of motion that he has no way to return to his country.

4.  In the applicant’s supporting affirmation, he made a bare allegation that he did not ‘get result’ without any details or explanation of how that was so.

5.  Pursuant to the Registrar of Civil Appeal’s directions of 25 May 2021, written submissions were to be lodged by the applicant on or before 7 June 2021.  As the applicant has failed to do so, we will consider his notice of motion on paper only without an oral hearing for the purpose of this application.

II.  Legal principles

6.  Under section 24(2)  of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’)  (Cap. 484), an 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.  Section 24(5)  of the Ordinance further provides that the Court of Appeal may, if it considers appropriate, extend the time for making an application for leave to appeal.

7.  Section 22(1)(b)  of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal, 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.

8.  In the present application, the applicant was over two months late.  The relevant factors in considering whether an extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at [1.4]).

III.  Our view

9.  No merits are shown in the applicant’s intended application.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion. 

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b)  of the Ordinance.

IV.  Disposition

11.  For these reasons, we decline to grant an extension of time to the applicant to file an application for leave to appeal to the Court of Final Appeal and dismiss the notice of motion filed on 24 May 2021.

Applicant, unrepresented, acting in person

CACV 284/2020

[2021] HKCA 361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 284 OF 2020

(ON APPEAL FROM HCAL NO. 1831 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge K.W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 13 July 2020.

1.2  This appeal was scheduled to be heard on 26 January 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 6 November 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Bangladesh.  He entered Hong Kong legally and overstayed. He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by his cousins to whom he owed money towards.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [4] to [7] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 17 October 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (‘the Director’s Decision).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 26 April 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 31 August 2018.

4.2  The Board found that although the applicant’s story of his debt to the cousins was consistent, the difficulty lay in nothing is known about the whereabouts of the two assailant cousins at present.  The alleged event happened in 1984.  During the time between 1990 and 2003, the applicant was in Bangladesh and he suffered no harm from the cousins during that period.  There was insufficient evidence to show that the applicant would suffer substantial risk of harm if he returned to his home country.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He did not set out any grounds to support his judicial review application.

5.2  The Judge held that the applicant appearing before him understood English.  He confirmed before the Judge that he was treated fairly before the Director and the Board.  He merely stated that he did not agree with the Board but could not state with particularity where the Board was in error.

6)  Grounds of appeal

6.  Doing the best we can to understand the applicant’s handwritten contents in his notice of appeal, he seemed to state that there is some form of handicap or impairment that he was suffering which affected his case.  No further particulars were provided.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.

Applicant, unrepresented, acting in person