RE NAWAZ REHMAT

CAMP 251/2020

[2021] HKCA 1237

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 251 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 798 of 2018)

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JUDGMENT

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

1.  On 23 July 2021, this Court handed down our judgment[1] refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge C P Pang given on 28 July 2020 refusing him leave to apply for judicial review.     

2.  On 6 August 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also put in a written submission on 13 August 2021 to support his application.

3.  Having considered the applicant’s notice of motion and written submission, 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.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to 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.

6.  The notice of motion set out the following grounds in support of the application:

(1)  The applicant did not know that failure to lodge a skeleton submission would cost him an oral hearing.  He had relied too much on friends and NGOs to help him because he does not have knowledge about the system of judicial review in Hong Kong.

(2)  The judges’ decision was procedurally unfair. The applicant was refused legal aid.

(3)  The Torture Claims Appeal Board (“the Board”) and NOD made their decision on the basis of other applicants but not on the basis of the applicant’s case.  The applicant’s case is genuine and real, not a made up story.  Had he been asked, he would be able to provide more proof to prove his case.  The Court of First Instance did not judge the decision of the Board and NOD fairly.

(4)  The judges were unfair to just rely on the media when in reality it is impossible for the applicant to relocate or seek help from the government and the condition in his country has worsened.  The Court said that the applicant’s story is not genuine and they found no error in the Board’s decision.  This is because the Court gave the same decision to all the applicants.

7.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Parbakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle and section 37ZT of the Immigration Ordinance, Cap. 115, which relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposed of the applicant’s claim.  It is also said that the social media shows there are smuggler killers in the applicant’s village who will terrify people into leaving their properties with them, and the applicant cannot relocate to other city as he cannot support himself.  The submission further stated that the applicant was married here with a baby, and it is not possible for him to leave his family and return to Pakistan.

8.  The matters put forward by the applicant in the notice of motion and the written submission do not constitute viable grounds for giving leave to appeal.  Importantly, they all relate to the circumstances of the applicant and his claim, and do not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b) of the Ordinance is therefore not met.  

9.  Moreover, many of the points made by the applicant are incorrect or have no relevance.  For instance, it was not because the applicant did not lodge a written submission that the application for leave to apply for judicial review was determined on the papers without an oral hearing.  Under Order 53 rule 3(3) of the Rules of the High Court, Cap. 4A, the Court of First Instance may deal with an application for leave to apply for judicial review without a hearing unless the applicant has requested a hearing in the Form 86.  Further, the reference to section 37ZT of the Immigration Ordinance in the written submission is entirely irrelevant, both because the applicant’s appeal to the Board was not late and the section has no relevance to court proceedings.                       

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

11.  As the statutory requirements for granting leave to appeal to the Court of Final Appeal are not met, we refuse the application and dismiss the notice of motion.

[1] [2021] HKCA 1035.