RE BARRY OUMAR

CACV23/2019

[2021] HKCA 427

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 23 OF 2019

(ON APPEAL FROM HCAL 281/2018)

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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 27 June 2019, this court (Barma and Au JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 3 January 2019 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 decision 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 23 June 2020, for leave to appeal to the Court of Final Appeal out of time.  The applicant stated in the Notice of Motion that:

“The judges were wrong as a matter of law for not having applied the principle of irrationality in considering the decision made by the Director of Immigration.

I will face hardship if I return back to my country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.

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

The judge did not apply the law properly.”

4.  In the affirmation dated 23 June 2020, the applicant deposed that:

“Leave be granted to me to file notice of motion out of time, as I was not aware of the procedural regularities as a lay person.”

5.  The applicant lodged a written submission in support of the application on 7 July 2020.  In the written submission, the applicant submitted that the Board failed to properly assess the credibility of the applicant and acted in a procedurally unfair manner.  The Board failed to meet the high standard of fairness.  The applicant also referred to a number of authorities without explaining their relevance to the application.

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 the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The application is some 11 months out of time.  No explanation has been given for the delay other than the fact that the applicant is unrepresented and did not know the time limits.  This is not a good reason.  In any event the application lacks merit.

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.  The applicant did not provide sufficient particulars for any of the grounds advanced in the documents filed for this application.  In our view, none of these grounds is reasonably arguable before the Court of Final Appeal. 

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

11.  For these reasons, the Notice of Motion dated 23 June 2020 is dismissed.