RE ALI ASRAF

CACV 212/2020

[2021] HKCA 680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2020

(ON APPEAL FROM HCAL 6/2018)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  On 23 December 2020, this court (Barma JA, P Ng and S T Poon JJ) handed down a judgment dismissing the applicant’s appeal against the Order of Deputy High Court Judge Bruno Chan (“the judge”) dated 16 June 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 15 March 2021, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“1 - The learned 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 on the dated 23 December 2020 refusing my application for judicial review.

2 -   The learned judges were wrong as a matter of the law for not having applied the principle of procedural unfairness to the decision to the Director hereby the Director was required to give reason justifying the Decision”

4.  In the affirmation dated 15 March 2021, the applicant deposed that:

“…

2. I am unrepresented and have no means to seek any proper legal advice.

3. However, I understand that there is a good ground of appeal that was not necessarily considered at the stage of applying for court of appeal.

4. I believe that the merits of this ground of appeal constitute sufficient reason justification for the Court to exercise its discretion in allowing this appeal.”

5.  The applicant lodged a written submission in support of the application on 29 March 2021.  The applicant submitted that:

(1)  The Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases to his application.

(2)  The Board failed to properly assess his credibility.

(3)  The Board’s decision was Wednesbury unreasonable.

6.  Having considered the applicant’s notice of motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on paper.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

8.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.  As we have explained in our judgment, it is not the role of this Court to re-examine the decision of the Board afresh as if it were a fresh application for judicial review.  We would therefore reject the grounds of application advanced in the written submission, which are only directed towards the decision of the Board.

10.  The applicant claimed that this Court failed to apply the principles of irrationality and procedural fairness to the Director’s Decision.  The applicant had not provided any particulars for those grounds.  Further, the Director’s Decision had been overtaken by the Board’s Decision for the purpose of the application for leave for judicial review.  We are therefore of the view that those grounds are not reasonably arguable before the Court of Final Appeal.

11.  The applicant claimed that he had a good ground of appeal that was not necessarily considered by this Court in dismissing his appeal without identifying what that ground was.  In the circumstances, this ground has no merit at all.

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

13.  For these reasons, the notice of motion dated 15 March 2021 is hereby dismissed.