RE ANSAR MUHAMMAD

CAMP 75/2017

[2018] HKCA 334

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 75 OF 2017

(ON AN INTENDED APPEAL FROM HCAL NO 208 OF 2017)

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J U D G M E N T

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

1.  On 30 April 2018, this Court (Lam V-P and Chu JA) handed down a judgment refusing to grant extension of time to the Applicant to appeal against the decision of Deputy High Court Judge Woodcock of 13 October 2017.

2.  By a Notice of Motion of 3 May 2018, the Applicant seeks leave to appeal to the Court of Final Appeal.  In the Notice, the Applicant stated as follows:

“ 1. I want the case to be reconsidered because I do not think the case has been determined fairly.

2. First and foremost, I understand that my application was made out of time but that was because I could not get the help needed in order to lodge a formal court application.

3. Furthermore, the Court does not intend to challenge the Board’s evaluation of evidence in this case by way of judicial review. It was mentioned that the determination of merits is a matter for the Board, not the court, and the court will not usurp the Board’s (as well as the Director’s) role as the primary decision maker. By making this decision, the Court seem to be suggesting that there are no other channels for non-refoulement claimants like me to seek to challenge the Board’s decision and that I will not be able to have my case determined fairly even if I lodge a judicial review with the Court or any other upper Courts. There should be a proper mechanism for claimants to seek to challenge the Board’s decision and if the Court is not ready to take part in the decision making, there should be other channels available to us.

4  I crave leave to submit further arguments or submissions to the Court.  I also request to have my case heard by way of oral hearing.”

3.  The relevant criteria for granting such leave are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance Cap 484:

“ 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.”

4.  Pursuant to Practice Direction 2.1 para 3, the Applicant lodged with the Court his skeleton submissions of 25 May 2018 reiterating his stance that the decision of the Torture Claims Appeal Board (“TCAB”) was unfair and made without thorough investigation.  He also alluded to the high standard of fairness as mentioned in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 197 and the implementation of the United Screening Mechanism after the decision of the Court of Final Appeal in Ubamaka Edward Wilson v Secretary for Security FACV 15 of 2011.  He asked for a reconsideration of his case as he did not think it has been determined fairly.

5.  In the documents lodged by the Applicant, he did not set out any questions of great, general or public importance for submission to the Court of Final Appeal in the Notice.

6.  As stated in para 3 of Practice Direction 2.1, subject to specific direction to the contrary, application for leave to appeal to the Court of Final Appeal are processed on the papers without any oral hearing. 

7.  As explained in Ng Yat Chi v China Resources (Holdings) Co Ltd CACV 263 of 2005, 27 July 2016 and 李艷梅及九龍城裁判法庭 HCMP 1326 of 2016, 15 November 2016, a motion for leave to appeal to the Court of Final Appeal falls within the scope of interlocutory application within the meaning of Order 59 Rule 14A of the Rules of the High Court.  By virtue of that provision, the Court may dispose of such application without holding any oral hearing.  There is no absolute right to oral hearing. 

8.  It is a matter of case management and the Court will have regard to a host of factors in the exercise of its power, always guided by the underlying objectives in Order 1A Rules 1 and 2 of the Rules of the High Court.  Amongst those factors, the complexity of the application and the benefit that the Court may derive from oral hearing, the nature of the application, conduct of the parties and the history of the proceedings would be taken into account.  Of course, there could be other relevant factors depending on the facts of each case and this list is not exhaustive.   

9.  Thus, though the Applicant asked for an oral hearing in his submissions, having considered the grounds put forward and his submissions, we are of the view that the application can be disposed of on the papers.   

10.  We have considered the application for extension of time based on the grounds advanced by the Applicant in his documents including his written submissions of 8 January 2018.  In the judgment of 30 April 2018, we explained why we came to the view that the intended application for judicial review was not reasonably arguable.

11.  The Applicant apparently did not understand the difference in the role of the Court in an application for judicial review as compared with the role of the TCAB.  In a judicial review, the Court is not examining the evidence and findings by the TCAB as if it were the primary decision maker.  This was the point made by this Court in the judgment of 30 April 2018 at [9] and [10].  The Court is only concerned if there is any procedural unfairness or other public law grounds for challenging such findings.  In the present case, this Court did not find any reasonably arguable basis on any such ground in the present case.  

12.  That conclusion is a case specific assessment.

13.  Having now reconsidered the latest submissions of the Applicant, we do not discern any question of great, general or public importance being involved in the intended appeal.

14.  Nor can we see any basis to grant leave on the “or otherwise” limb. 

15.  For these reasons, we refuse to grant leave to the Applicant and we dismiss the Notice of Motion accordingly.