RE KHAN KAMAL AHMED

CACV 254/2020

[2021] HKCA 397

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2020

(ON APPEAL FROM HCAL NO 1796 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 29 December 2020[1], this Court (Yeung VP and Toh J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 30 June 2020 in HCAL 1796/2018 refusing to grant leave to him to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) given on 8 August 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 13 April 2018 rejecting his non-refoulement claim.

2.  By a Notice of Motion dated 7 January 2021, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

(1)  He had no knowledge of the judicial system of Hong Kong and he did not know failure to lodge written submissions would cause an oral hearing being vacated.  There was a lack of language assistance rendered to him.

(2)  There was procedural unfairness in the judges’ decisions.  His application for legal aid was rejected and there was a lack of legal assistance.

(3)  The judges found no error in the Board’s and the Director’s decisions but the applicant denied any inconsistency in his evidence and the Board and the Director made decisions on the basis of other applicants’ cases.  The Judge did not give a fair judgment on the Board’s decision as the price of land in Pakistan has appreciated in value and his uncle may harm or kill him unless he hands over the land his uncle.

(4)  He had agreed to hand over half piece of land to his uncle and he urged the court to grant him extension of time to solve his problem with the help of the senior villagers of his home town.

3.  In compliance with the directions made by the Registrar of Civil Appeals on 8 January 2021, the applicant lodged his written submissions on 21 January 2021.

4.  In the written submissions, he advanced the following complaints against the Board’s and the Director’s decisions:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement.

(2)  The Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.

(3)  The Board had failed to adhere to the high standard of fairness owed to a self-represented claimant by (a) failing to allow sufficient time for him to prepare for the appeal hearing and the bundle was all in English and (b) relying on sources of news that was not officially recognized or hearsay or outdated that resulted in groundless speculation that it would be safe for him to return to his home country.

(4)  The Board had failed to consider the concept of extended acquiescence.

(5)  The Director had failed to consider the concept of extended acquiescence.

(6)  The Director had failed to advise him to obtain evidence to prove his claim on BOR 2 risk and medical report.

5.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

6.  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 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.

7.  Firstly, the complaints against the Judge for his failure to properly and sufficiently considered the Board’s and the Director’s decisions were ill-founded.  As explained at [6] of our judgment, the Judge had duly set out and summarized the crucial findings and conclusions in the CALL- 1 Form and then gave his reasons for rejecting each ground of challenge advanced by the applicant. We found no error of law or procedural unfairness on the part of the Judge in reaching his decision.

8.  Secondly, it is trite that Judicial review is not an avenue for revisiting the assessment of the Board and the Director in the hope that the court may consider the matter afresh.  As explained at [12] and [13] of our judgment, the applicant’s complaints against the Board’s and the Director’s decisions were general assertions without particulars and we found no public law grounds that warrants this court to intervene with the Board’s decision.

9.  Thirdly, the high standard of fairness does not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  Further, the fact that the applicant has been using English in preparing all the court documents indicated that either he is conversant with the English language or that he has access to language assistance of his own if needed.

10.  Lastly, regarding the applicant’s complaint that he had lost the chance to be heard orally because of his failure to lodge the written submissions were simply not true.  We note that the Judge heard his case on 14 November 2019 and this Court heard his appeal on 22 December 2020 (after he lodged his written submissions on 27 October 2020).

11.  In all, we did not find any merit in any of the matters and complaints set out in the Notice of Motion and the written submissions and his intended appeal is bound to fail.

12.  For the reasons that we gave in our judgment of 29 December 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either. The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

13.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.

[1] [2020] HKCA 1070