Re Rizwan Alias Rizwan Gulistan

CACV 244/2017

[2018] HKCA 382

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2017

(ON APPEAL FROM HCAL 292/2017)

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Before:  Hon Cheung CJHC, Hon Lam VP and Hon Poon JA in Court

Date of Judgment:  10 July 2018

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.By a judgment dated 16 March 2018, this court (Cheung CJHC and Lam VP) dismissed the applicant’s appeal from the decision of Au‑Yeung J dated 27 October 2017 refusing leave to the applicant to apply for judicial review.

2.From that judgment, the applicant now seeks leave to appeal to the Court of Final Appeal on two grounds which are said to be questions of great, general or public importance, that is, “whether lack of legal representation is a reasonably arguable basis to challenge the fairness of process”; and “whether there ought to be an additional basis for advancing a case on the BOR2 risk separate from the BOR3 risk, torture risk and persecution risk”.  The applicant has not lodged any written submissions in support of his application despite directions to do so.

3.We will not repeat the facts and issues involved in the appeal, or the court’s reasons for dismissing it.

4.The applicant was late by over a month in seeking leave to appeal to the Court of Final Appeal.  He explained that he was unaware of the time limit of 28 days, and therefore only filed his notice of motion on 18 May 2018.

5.That is not a good and sufficient ground for an extension of time under section 24(5) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) to seek leave to appeal.  An extension of time would only be granted when very good grounds to do so could be shown: Full Wisdom Holdings Limited v Traffic Stream Infrastructure Company Limited,CACV 266/2003, 27 July 2004; Wing Hang Bank Limited v Crystal Jet International Limited, CACV 255/2002, 9 March 2006; and Bowlstar (HK) Limited v Ho Kwai Po, CACV 156/2006, 10 July 2007. Ignorance of the relevant time limit is generally not regarded as a good excuse for delay.

6.In any event, we do not agree that any reasonably arguable questions of great, general or public importance have been raised.

7.As regards legal representation, we do not find it reasonably arguable that the high standards of fairness required of the screening process (including the appellate stage before the Torture Claims Appeal Board) mean that as a general rule, free legal representation before the board must be offered to a claimant.

8.As regards the assessment by the Director of Immigration of the BOR2 risk of the applicant, the court has already explained in paragraph 11 of its judgment that on the facts, the director was perfectly entitled to proceed on the basis that the applicant’s case on the BOR2 risk was based on the same primary material relating to his other claims (prepared with legal representation) in relation to the BOR3 risk, torture risk and persecution risk.  But more importantly for our present purpose, that was entirely a fact‑sensitive question, which does not raise any question of great, general or public importance.

9.Nor do we see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the Ordinance.

10.For these reasons, we refuse to extend time to seek leave to appeal to the Court of Final Appeal, and dismiss the application for leave accordingly.

The applicant appeared in person