RE HUSSAIN WAJID

CAMP 117/2018

[2019] HKCA 66

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 117 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO 543/2017)

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J U D G M E N T

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

1.  On 5 October 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 19 June 2018 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 12 October 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1.  I do not understand why the Judges will consider the prospect of success as that is the determination of the Judge who hears my appeal, not the Judge who hears the request for my case to be determined out of time. I do not know court procedure very well but I believe that they should be determined separately.

2.  Moreover, the Judges seem to suggest that because I have help in my other documents that would imply that I will also get the same help from my friends for the appeal. However this is not the case in real life. If there is a resource centre for non-refoulement claimants whereby we can just walk in to get more additional information about the next step in the appeal process, I would easily be aware of the deadline. However, there is no such system implemented in Hong Kong at the moment and that was the reason it took me some time to figure it out.

3.  I believe that I have submitted a cogent and genuine explanation for the delay and I should have been given the benefit of doubt as an unrepresented litigant.

4.  I also respectfully disagrees with Paragraph 17 of the Judgment.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 25 October 2018.  In his written submission, the applicant reiterated the matters raised in the Notice of Motion.  He added that “the judges have failed to explain why representation for BOR 2 is a representation at a later stage when procedurally they are of the same nature (i.e. before the Director) and therefore should be treated as representation of the same stage.

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

6.  The matters stated by the applicant in his notice of motion and written submission 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 in his notice of motion and his written submission.

7.  The applicant contended that the issue of extension of time and the merit of the intended appeal should have been considered separately and by different judges.  This contention is not supported by any authority.  In any event, it has no merit – in SJ v Hong Kong & Yaumati Ferry Co Ltd [2001] 1 HKC 125 at 128C, this Court held that the merit of the intended appeal is one of the factors to be considered in an application for extension of time to appeal.  It follows that the 2 issues are intertwined and should be considered together.

8.  As for the ground concerning legal assistance, we have dealt with the same at [17] of our judgment.  Having considered the notice of motion and the applicant’s written submission, we find nothing amiss in our judgment. 

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

10.  For these reasons, the notice of motion dated 12 October 2018 is dismissed.