Bapari Md Shahin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 309/2019

[2019] HKCA 1177

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 309 OF 2019

(ON APPEAL FROM HCAL 363 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.This is an appeal by Mr Bapari Md Shahin (“the appellant”) from an order of DHCJ Josiah Lam (“the Judge”) given on 28 June 2019 dismissing his application for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 23 June 2017 (“the TCAB’s decision”) which had rejected the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”). The Judge’s reasons were given in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

2.This was the appellant’s 2^nd application for leave to judicially review the same decision of the TCAB.  The appellant’s 1^st leave application was refused by DHCJ Woodcock on 23 February 2018 in HCAL 411/2017[2].  He did not appeal DHCJ Woodcock’s decision.

3.Instead, on 7 March 2018 the applicant filed the 2^nd application for leave to judicially review the TCAB’s decision.  The following significant matters should be noted.  First, this 2^nd application was well out of time, being nearly 9 months after the TCAB’s decision.  Secondly, there was no change of circumstances between the 1^st and 2^nd applications.  On the contrary, as noted by the Judge, the grounds of the 2^nd application could and should have been raised in the 1^st application. His 1^st ground was lack of language assistance and his 3^rd ground was lack of legal assistance before the TCAB, matters which were clearly known to him personally when he made the 1^st application and which he had chosen not to advance then.  His 2^nd ground was an assertion of a general principle without any allegation of non-compliance.   

4.Finally it would appear that the applicant told the Judge that DJHC Woodcock had refused his application due to “lack of presentation”.  As the Judge pointed out in para. 22 of his Decision, that was incorrect as he had presented a number of complaints in his affirmation before DHCJ Woodcock and had also attended the hearing in court.       

Appeal to Court of Appeal

5.By a Notice of Appeal filed on 4 July 2019, the appellant appealed the Judge’s Decision to this court.  He stated the following in his Notice of Appeal:

“..... the [appellant] will face hardship if he is to return back to his home 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. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Skeleton Submissions

6.After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers. 

Discussion

7.In light of the fact that this was a 2^nd application based on grounds which could and should have been advanced at the 1^st application, from which there has been no appeal, this is a clear abuse of the process.

8.We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence these new judicial review proceedings.

Order

9.For the reasons set out above, this appeal must be dismissed.