RE RIAZ YASMEEN

CACV 135/2018

[2019] HKCA 1265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 135 OF 2018

(ON APPEAL FROM HCAL NO. 435 of 2017)

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JUDGMENT

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

1.  On 29 August 2018, this Court (Yuen and Chu JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 23 April 2018 refusing him leave to apply for judicial review. On 6 September 2018, we handed down our Reasons for Judgment.[1]  

2.  By a notice of motion and an affirmation both filed on 21 August 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. The applicant has put in a written submission to support his application. 

3.  Having considered the applicant’s notice of motion, affirmation 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 his notice of motion and affirmation.

4.  The background of this case and the applicant’s claim had been set out in our judgment. We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 (“the Ordinance”) provides that 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. Under section 24(5), this Court may extend the time for the filing of the notice of motion

6.  The delay in this case is more than 10 months, which is very serious delay. The applicant stated in his affirmation that he was imprisoned between 18 August 2018 and 20 June 2019 as a result of a criminal conviction. Consequently, he was absent at the appeal hearing and did not receive the order and the Reasons for Judgment. He further explained that it was after his discharge from the prison that an immigration officer informed him his appeal was dismissed. We are prepared to accept the applicant’s explanation, although we would point out that the applicant should have written to the Court to inform us of his imprisonment and his new correspondence address.  

7.  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.

8.  In the notice of motion, the applicant stated that because he was imprisoned and did not attend the appeal hearing, he did not have an opportunity to elaborate on the arguments in his written submission, which we had summarised in [17] in our judgment. The applicant asked for reconsideration of his case and that an oral hearing be arranged.

9.  The written submission complained that the Court did not thoroughly consider his grounds of appeal. It also complained that other claimants were given legal representation without having to ask for it, and even if the applicant were not entitled to legal representation, he should be given language assistance when the Director assessed his case. It also argued that the high standard of fairness had not been followed and that the case should be remitted to the Director for reassessment on the BOR 2 risk ground with legal and language assistance in that the decisions of the Board and the Judge were not translated to him and he was deprived of the opportunity to point out the errors, and that even if he could find some language assistance, it did not mean the Board and the Judge did not owe a duty of care to self-represented litigants.    

10.  What the applicant put forward in the notice of motion and written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b). Secondly, with respect to what was stated in the notice of motion, although the applicant was absent at the appeal hearing, we had considered his grounds of appeal and his arguments in the written submission. For reasons we gave in [18] to [23] of our reasons for Judgment, we considered the grounds of appeal and the arguments were unarguable, and the appeal was dismissed for lack of merits.  Thirdly, regarding the arguments in the written submission, we had in [19] and [20] of our Reasons for Judgment pointed out that the complaints about lack of legal representation and language assistance were new arguments and it was not open to the applicant to raise them at the stage of applying for leave to appeal to the Court of Final Appeal. 

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

12.  In the circumstances, the applicant has not met the statutory requirements for giving leave to appeal.  It will be futile to extend the time for the applicant to apply for leave to appeal. Accordingly, we refuse to extend the time for the applicant to apply for leave to appeal to the Court of Final Appeal, and dismiss the notice of motion.