Re Razzaq

CAMP 176/2019

[2022] HKCA 59

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 831/2017)

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Before:  Hon Barma JA and Au JA in Court

Date of Judgment:  11 January 2022

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J U D G M E N T

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1.On 31 May 2021, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of DHCJ Bruno Chan (“the judge”) given on 22 March 2019 refusing to grant an extension of time for his application for leave for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”), which dismissed his appeal against the decisions of the Director of Immigration (“the Director”).

2.The facts and issues in the application, 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 filed out of time on 22 July 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“… I would like to inform to the court some error in law in my decision. Decision maker just relied on COI information and my previous facts which favour on reject my appeal in court and my claims in Immigration department. Actual life occur different situation the mentioned COI information (TCAB) members and Director of Immigration and Hong Kong High Court prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver… The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my appeal …”

4.In the affirmation filed on 22 July 2021, the applicant deposed that his delay in filing the Notice of Motion was caused by his lack of legal representation and illiteracy.

5.In his written submissions lodged on 2 August 2021, he reiterated the dangers he may face if refouled to Pakistan, the alleged errors committed by the Board as well as his lack of legal representation.

6.Having considered the applicant’s Notice of Motion, affirmation and written submissions, 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 documents filed.

7.The applicant claimed that he did not file the Notice of Motion within time because he did not have legal representation and that he “can’t read and write”.  This court has emphasised repeatedly that as a matter of law, a non‑refoulement claimant is not entitled to free legal representation at all stages of the application process.  See Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  As for the applicant’s contention that he was hindered by his illiteracy, there is nothing to suggest that he had any problems with presenting his case sufficiently before the Director, the Board or the judge.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.

8.In any event, the matters stated by the applicant 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.

9.None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.For these reasons, the Notice of Motion filed on 22 July 2021 is dismissed.

The applicant acting in person