Re Younas Shiraz

CAMP 26/2019

[2020] HKCA 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 26 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1101/2017)

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Before: Hon Chu JA, Barma JA and Au JA in Court

Date of Judgment: 7 May 2020

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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 26 July 2019, this court (Chu and Barma JJA) handed down a judgment dismissing the application for leave to appeal against the decision of Campbell-Moffat J (“the judge”) on 7 September 2018 refusing leave to the applicant to apply 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 for leave to appeal, 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 30 July 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform Court of Final Appeal there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favor on reject my claim. Actual life occur different situation then mentioned COI Information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claims.”

4.In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 9 August 2019.  In the written submission, the applicant submitted that:

(1)  he has asked for a hearing before the Court of Appeal.  He did not lodge a written submission because of language problem;

(2)  it is unfair that no high court judge has heard his submission;

(3)  lack of legal representation and language assistance for his BOR2 risk led to a breach of high standard of fairness;

(4)  the lack of translation of the Director’s Further Decision and the Board’s Decision meant that the applicant could not understand these decisions;

(5)  lack of assistance by the Duty Lawyer Service;

(6)  all acts of the authorities had been highly discriminatory and unfair to the applicant; and

(7)  the problem of lack of language assistance still exists at the time of the submission.

5.Having considered the applicant’s Notice of Motion and written submission, 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 Notice of Motion and written submission.

6.The matters stated by the applicant in the Notice of Motion and written submission 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 in the Notice of Motion and written submission.  

7.Most of the grounds in the Notice of Motion and the written submission are directed towards the decision by the Director and the Board. They do not identify any error in our judgment and are thus not viable grounds of appeal.

8.The applicant submitted that there were errors of law and that the courts prefer to ignore the overwhelming evidence of violence towards minorities.  Both grounds lacked particulars and are bound to fail.

9.The applicant complained that he did not have the opportunity to attend a hearing before the judge and the Court of Appeal.  The judge did not hold a hearing because the applicant did not ask for a hearing under RHC Order 53 rule 3(3).  Under §16 of Practice Direction 4.1, no hearing date would be given when an application for leave to appeal is taken out, even when an applicant has filed a submission.  In any event, the applicant failed to identify the arguments he wished to make in the hearing and he had not identified any prejudice.  His application to this court was a renewed application for leave to appeal out of time, and was dealt with on paper as is the usual practice of this court.

10.Lastly, for the complaint based on the alleged lack of language and legal assistance, this court has repeatedly held that the high standard of fairness does not mean that an applicant will receive language and legal assistance at all stages.  Further, the applicant is apparently able to make detailed submission in English.  There is nothing to suggest that the applicant suffered any prejudice in this respect.

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

12.For these reasons, the Notice of Motion dated 30 July 2019 is dismissed.

The applicant acting in person