RE NASEER MUHAMMAD

CACV 493/2020

[2021] HKCA 1113

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 493 OF 2020

(ON APPEAL FROM HCAL NO 451 OF 2019)

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J U D G M E N T

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

1.  On 26 April 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Coleman J) judgment of 9 April 2021 (“the Judgment”) [2021] HKCA 491. In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge CP Pang dated 14 September 2020 (“the Deputy Judge’s Decision”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  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 (“CFA”) at the discretion of this Court or the CFA if 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 CFA for decision.

4.  In his Notice of Motion, the applicant raised the following intended grounds of appeal:

“1) i did not failure to lodge the skeleton submission would cost me an oral hearing. i specially requested for one. i relied too much on friends and NGO’s to help me out from this situation bcz i dont have any knowledge about the judicial review system in hong kong as i did not get any translation from friends and NGO’S.

2) judges were procedurally unfair in my decision because as i mention before that i dont have any knowledge about judicial review system in hong kong but i asked help from one of my friend to submit written submission for me but later i does not work. i requested for the legal aid to provide me a legal adviser to help me out but they refused it.

3) as the judges mention that they are unable to found the erred in TCAB or NOD decision. i dont have any inconsistence in my hearing even i gave prove to the TCAB and NOD but still they give decision against on me. The TCAB and NOD give decision on the basis of other applicant but. my case is genuine and real its not a story i can provide more proof if they asked me that but still i can provide now and i can make it proof that my case is genuine and real but they dont judge on the basis of other applicant from our country. the court of first instance did not judge fair the decision of TCAB AND NOD

so kindly give me extension to solve my problem by the help of villagers but its take to talk with my uncle and try to agree them to get half of my land by the help of village senior.”[sic]

5.  In his written submissions of 6 May 2021 filed pursuant to the directions of Registrar of Civil Appeals, the applicant quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness.  He further submitted that “high standards of fairness” applied to the determination of a non-refoulement claim and that the Board had acted in a procedurally unfair manner without properly assessing the applicant's credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is about the late filing of notice of appeal to the Board.

6.  In our view, the applicant’s application is totally without merit.

7.  First, it was misconceived for the applicant to argue that his failure to lodge written submissions deprived him of an oral hearing.  The applicant’s application for leave to apply for judicial leave was made out of time, and he did not ask for an oral hearing.  The hearing of the applicant’s appeal against the Deputy Judge’s Decision was held on 29 March 2021, during which the applicant was present with the assistance of an interpreter.  When asked, the applicant said he had nothing to add to his application: see [10-12] of the Judgment.

8.  Second, the applicant’s complaint of lack of legal assistance also has no merit.  Such complaint was not raised before us and it is therefore new.  As this Court stated at [20] of the Judgment, new arguments that are not canvassed before would not generally be entertained. Further and in any event, this Court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the process: see Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].

9.  Third, the rest of the grounds in his Notice of Motion and written submissions are against the Torture Claims Appeal Board and the Director of Immigration.  They are therefore not viable grounds of appeal against the Judgment.

10.  In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

11.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.