RE SK NIZAMUDDIN

CAMP 269/2019

[2020] HKCA 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 269 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 1035 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 August 2020 ([2020] HKCA 594), this Court (Yeung VP and Chu JA) refused to grant an extension of time to the applicant to appeal against the decision of Campbell Moffat J (“the Judge”) given on 19 December 2018 in HCAL 1035/2017 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 23 November 2017 dismissing his petition/appeal from the decisions of the Director of Immigration (“Director”) given on 6 May 2016 and 27 June 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 21 August 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“The 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.

The learned Judges were wrong as a matter of law for not having applied the principle on procedural unfairness to the decision of the Director whereby the Director was required to give the reasons justifying the decisions.

I believe the decisions were not reasonable as fair, the right to life is protected under Article 28 of the Basic Law and Article 2 of the Bill of Rights. The right to life is mainly protected by the criminal law and it must be protected from extra-judicial killing that I may face if I am deported back to my country.

The Judge did not apply the law properly.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 21 August 2020, the applicant lodged his written submissions on 4 September 2020.

4.  In his written submissions, he advanced the following:

(1)  It is his fundamental human right not to be subject to torture and high standards of fairness are required in determination of his non-refoulement claim as the decision had significant implications for his substantive right and his claim.  He cited ST v Director of Immigration[1] and quoted some passages in Secretary for Security v Sakthevel Prabakar[2] in support of his assertions. 

(2)  The Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility.  He averred that by the doctrine of reasonableness, an administrative decision should be set aside if it was unreasonable.  He cited Associated Provincial Picture Houses Limited v Wednesbury Corporation[3] and R v Ministry of Defence ex p. Smith[4] in support of his complaint.

(3)  He referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is a provision concerning the late filing of notice of appeal to the Board.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) 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 in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

7.  In our judgment, the grounds of complaint set out in the notice of motion were unmeritorious.  Firstly, it was well established that the decision of the Director is not susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant, see Re Moshsin Ali[5]. Secondly, as clearly set out at [10] and [11] of our judgment, the applicant put forward 8 grounds of appeal against the Board’s decision rather than the Director’s decision in the Form 86 and the Judge had duly considered and rejected them with reasons given.  It was our findings at [23] of our judgment that the Judge’s findings were well justified and without flaw.  The grounds were bound to fail. 

8.  Regarding the grounds set out in the written submissions, they were not viable grounds of appeal as none of them pinpointed any error of law or raised any discernible ground to reverse our judgment.

9.  For the reasons that we gave in our judgment of 11 August 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

[1] The correct citation should be ST v Betty Kwan [2014] 4 HKLRD 277.

[2] [2005] 1 HKLRD 289

[3] [1948] 1 KB 223

[4] [1996] 1 All ER 256

[5] [2018] HKCA 549