Re Md Sahin Miah

CAMP 270/2019

[2021] HKCA 43

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 270 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 740 OF 2018)

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Before:  Hon Yeung VP, Chu and Pang JJA in Court

Date of Written Submissions:  22 October 2020

Date of Judgment:  21 January 2021

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.By a judgment dated 11 September 2020 ([2020] HKCA 741), this Court (Yeung VP and Pang JA) dismissed the applicant’s application for an extension of time to appeal against the decision given by Deputy High Court Judge Josiah Lam (“the Judge”) on 11 June 2019 in HCAL 740/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 23 April 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 28 November 2016 rejecting his non-refoulement claim.

2.By a notice of motion dated 12 October 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“The decisions of the judges are not correct. They did not listen to me they follow the Director’s decision. I did not get any justice in the High Court. So I want to go to the Court of Final Appeal.”

3.In compliance with the directions made by the Registrar of Civil Appeals on 15 October 2020, the applicant lodged his written submissions on 22 October 2020.

4.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.

5.In the applicant’s written submissions, he firstly set out his personal background and then advanced the following grounds of appeal:

(1)  The Director and the Board did not investigate his problem properly and only asked him questions and then made their decisions which were easy for them but “costly” and “heavy” for him.  It is life and death question for him but without thinking his life, the Director and the Board made the decisions.

(2)  The applicant had a suggestion to the Director and the Board but they did not listen.  If the Director keeps all the refugees in a camp and stop them from earning money, then only real refugees will stay in the camp.  Now the government is giving them house, rent, food etc.  The government had invested a big amount of money and the result is almost zero. The government needs not to spend this money but to keep them in a camp.

(3)  The Director and the Board did not consider his family, education, political and economic status.  Without considering those points, nobody can reach the perfect goal.

(4)  He is not clever to tell his fact and just his own statement is not enough.  He has no knowledge about the law and not a lawyer.  He was provided with a lawyer for the screening test before the Director but not before the Board.  The Board would provide lawyer to some refugees and why there was a difference.

(5)  The same problem happened in the high court proceedings while some refugees received help from lawyers.  His application for legal aid was refused which meant his case was weak and the judges easily dismissed his case.

(6)  He had no complaint against the high court judges as he failed to give good grounds of appeal.  He only complained against the Director and the Board.

(7)  He was unable to provide reasons but he requested the court to understand the weaknesses of the Director and the Board.

(8)  He urged the court to exercise the power to grant him leave and save his life.

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.The applicant did not seek to challenge our judgment or the Judge’s decision but requested us to reconsider the Director’s and the Board’s decisions.  As repeatedly emphasised by this Court, the role of the court in a judicial review is not to provide a further avenue of appeal against the Board’s decision and the court will not intervene unless there are errors of law or procedural unfairness or irrationality in its decision[1]. Further, as stated in [23] of our judgment, any vague and general assertions against the decisions made by the Director and the Board would not be valid grounds of appeal.  Lastly, the applicant’s complaint for lack of legal assistance was canvassed and duly rejected by the Judge with reasons set out at [38] of the Call-1 Form.  

8.In our judgment, the applicant has not raised any reasonably arguable ground of appeal on the merit of his claim or any discernible or arguable ground for disturbing our judgment.

9.For the reasons that we gave in our judgment of 11 September 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 his 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.

10.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

The applicant, unrepresented, acted in person.