Re Rahman Zaiwr Ur

CACV 164/2020 [2021] HKCA 151 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 164 OF 2020 (ON APPEAL FROM HCAL NO 289 OF 2018) ________________________ RE: RAHMAN ZAIWR UR Applicant ________________________

Before:

Hon Cheung JA, Au JA and ST Poon J in Court

Date of Written Submissions:	1 December 2020
Date of Judgment:	10 February 2021

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J U D G M E N T

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

1.On 20 November 2020, the applicant filed his Notice of Motion to apply for leave to appeal to the Court of Final Appeal (“CFA”) against this Court’s (Au JA and ST Poon J) judgment of 10 November 2020 (“the Judgment”) [2020] HKCA 912.

2.In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 1 June 2020 [2020] HKCFI 470 refusing the applicant leave to apply for judicial review against the decision of Torture Claims Appeal Board / Non-refoulment Claims Petition Office (“the Board”) dated 2 February 2018 (“the Board’s Decision”).

3.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, pursuant to paragraph 3 of Practice Direction 2.1, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing.

4.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the CFA at the discretion of this Court or the CFA if 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 CFA for decision.

5.The Applicant has set out the following matters in his Notice of Motion for leave to appeal to the CFA:

“1)  i did not know failure to attend hearing would cost me an appeal hearing. i specially requested for one. I suppose i relied too much on my friends as no translation was given to me. i have no idea how to make grounds for judicial review.

2)  Judges were procedurally unfair because there was a significant in the part where I could not obtainduring my hearing. this is of particular importance as the Board did not find me a credible witness.

3)  I accepted that Nod and TCAB give me freedom to talk everything clearly as the deputy judge asked me about freedom, but the judges did not notice that i request for a hearing that i missed in TCAB hearing. there were the significance in the TCAB hearing that i could not attend the TCAB hearing.” [sic]

6.The applicant’s written submissions of 1 December 2020 raised identical issues as in his written submissions of 17 July 2020 that was placed before us on appeal.  The arguments therein had been rejected by us with reasons at paragraphs 24-26 of the Judgment.  He has not provided any grounds to support why we were wrong in rejecting them.  He also raised a new point on his right of access to justice and repeated his personal background and claims.  The applicant effectively complained that he did not have an oral hearing before the Board which deprived him of the chance to clarify his versions of event found to be incredible by the Board.  However, this ground also has no merits for the following reasons.

7.First, this complaint was neither raised before the Deputy Judge nor before us, which we would not now entertain: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].  Further, it is not a challenge against the Judgment.  On this basis alone, we will dismiss this application.

8.Second and alternatively, as has been held by this Court (differently constituted), there is no absolute right to an oral hearing, as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26.

9.As summarized at [10] of the Judgment, the Board found the applicant to be an incredible witness on the basis that he provided inconsistent testimonies in his non-refoulement claim form and in his interview with the immigration officer.  If the applicant was minded to and had in his possession documents to clarify the inconsistences, he had ample opportunities to do so before the Deputy Judge or before us.  Yet, he did not make any further representation or submit any additional materials before us regarding his claim which he said he would have been able to provide to the Board if he was given an oral hearing before the Board.

10.In the premises, the applicant has failed to show that he had suffered any real prejudice from the lack of oral hearing before the Board, not to mention that the Board also dismissed his claim on the alternative grounds of internal relocation and state protection.  As such and in the circumstances, this ground has no arguable merit.

11.In any event, the applicant also failed to show any question of great general or public importance or otherwise which ought to be submitted to the CFA for determination.  Plainly, the statutory requirements under section 22(1)(b) of the HKCFAO are not met.

12.For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.

(Peter Cheung)	(Thomas Au)	(ST Poon)
Justice of Appeal	Justice of Appeal	Judge of the Court of First Instance

The applicant acting in person.