RE REHMAN SAQIB

CACV 463/2019

[2020] HKCA 802

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 463 OF 2019

(ON APPEAL FROM HCAL NO 1665 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 15 June 2020, the applicant applied by Notice of Motion for leave to appeal to the Court of Final Appeal (“the CFA”) against this Court’s (Cheung and Au JJA) judgment of 9 June 2020 (“the Judgment”) [2020] HKCA 451.

2.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Woodcock on 27 September 2019 [2019] HKCFI 2146 refusing leave to apply for judicial review against the decision of Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”).

3.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) (“the HKCFAO”) provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA 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 CFA for decision.

5.  In the applicant’s Notice of Motion, he advanced three grounds:

“1. I did not Know Failure to Lodge skeleton written submissions would coas me in hearing. I specially requested for one but I did not receive any letter for hearing in judicial review nor for appeal for judicial review. I relied too much on my friends as no translation was given to me even I paid money for them to help me to submit all documents for appeals and written submission as well. I cant afford to pay for the legal lawyer thats why I asked help to one of my friend even I paid money to him and thtat money I borrow to some one.

2. Judges were procedurally unfair because there was a significant in the part where I could not answered the question of TCAB of my imprisoment. that is the the particular importance as the board did not find the credible witness.

3. I was hoping that I will attend a hearing and I will put out the mistakes in J.R hearing with help of Interpreter but unlucky my friend did not submit submission and judges gave decision on the paper.” [sic]

6.  The applicant lodged his written submissions on 26 June 2020 as directed.  His arguments can be summarized as follows.

7.  He argued that the Board had: (a) unlawfully fettered its discretion; (b) its decisions were unreasonable, irrational and were the result of procedural unfairness; (c) failed to apply the high standards of fairness owed to a self-represented claimant; (d) delayed in giving the hearing bundles to him; (e) relied on outdated source of news; (f) failed to give sufficient weight to the concept and the extended concept of state acquiescence; (g) failed to make sufficient enquiries; and (h) its conclusion on the situation of his home country was speculative.  Against the Director of Immigration (“the Director”), he argued that the Director failed to consider the concept of extended acquiescence and the Director’s conclusion on the situation of his home country was mere speculation.  He also cited some passages from Ubamaka Edward Wilson v Secretary for Security [2012] HKCFA 87 and C v Director of Immigration [2013] HKCFA 19 in support.

8.  Further, he listed eight questions sought to be answered by the Director in light of the decision in Ubamaka which are all related to the mechanism of assessing the non-refoulement claim.

9.  In our view, the applicant’s intended appeal has no merits at all.

10.  First, the abandonment of the oral hearing before this Court was discussed at paragraphs 3 ‑ 5 of the Judgment.  The applicant did not identify why this Court was wrong in so deciding.  It is simply misconceived for the applicant to say that he was not aware of the consequence of failing to submit the written submissions as the warning was stated in the Notice of Hearing which was sent to him on 28 November 2019.  The Notice of Hearing was not returned.  This is not a viable ground.

11.  Second, the applicant failed to identify any errors, let alone any particularized one, in the Judgment.  The arguments in his written submissions are against the Board and the Director, which are clearly not viable grounds to challenge the Judgment.

12.  Third, the rest of the matters raised in the applicant’s Notice of Motion are general and bare assertions.  Nor do we discern any grounds of appeal that would disturb the Judgment.

13.  Further, and in any event, the applicant had failed to identify any question of great general or public importance that ought to be submitted to the CFA for decision.  Nor do we see any basis to grant leave on the “otherwise” limb. Plainly, the statutory requirements under section 22(b) of the HKCFAO are not met.

14.  For these reasons, we refuse to grant leave to the applicant, and dismiss the applicant’s Notice of Motion accordingly.