RE BEPARI HIRU

CAMP149/2019

[2021] HKCA 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 149 OF 2019

(ON APPEAL FROM HCAL 681/2018)

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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 23 April 2020, this court (Cheung JA and Barma JA) handed down a judgment dismissing the applicant’s application for leave to appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 30 January 2019 refusing extension of time for applying 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 application, 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 claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The applicant gently did not have enough time to address the bundle.  Rest of the grounds I will submit as soon as possible.”

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

“1.  The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

2.  The [judges] also failed to find out the clear details of the current situation of Bangladesh”

5.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 24 June 2020, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s Notice of Motion and affirmation, 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 one month out of time.  However, no explanation has been provided for the delay.  In any event, for the reasons explained below, the application is unmeritorious.

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.  We have repeatedly held that it is not the role of the Court of Appeal to re-examine the decision of the Board as if it were a fresh application for judicial review and that the applicant needed to identify an error on the part of the judge.  We are therefore of the view that for those grounds that are only concerned with the errors by the Board, they are not reasonably arguable before the Court of Final Appeal.

10.  As for the two grounds raised in the affirmation dated 23 June 2020, we note that the applicant made the same complaints in his affirmation dated 2 July 2019 and this court has already dealt with those grounds in [19] of our judgment.  The applicant did not identify any error in our judgment.

11.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 (Decision 14 July 2020) that an applicant did not need to seek leave under Section 14AA of the High Court Ordinance (Cap 4) (“Section 14AA”) to appeal to this court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this court by way of appeal out of time, it cannot assist the applicants in this instance because we did not merely dismiss the application on the ground of delay.  We have also considered the merits of his application.  We concluded that the grounds he advanced had no merit.  This being the case it will be futile to take the matter further to the CFA.

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

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