Re Hossain Anowar

CACV 396/2022, [2023] HKCA 1361

on appeal from [2023] HKCA 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 396 OF 2022

(ON APPEAL FROM HCAL 1115 OF 2019)

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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 31 March 2023, this court (Yuen JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 27 September 2022 (“the CALL-1 Form”) refusing to grant leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration (“the Director”) rejecting his non-refoulement claim and the Director’s decision itself.

2.The facts and issues in the 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 filed on 11 April 2023, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“Director of Immigration and Torture Claims Appeal Board dismissed my non-refoulement claim. The High Court and the Court of Appeal dismissed my leave to apply for judicial review. All this judgments are not good for me. I want to go to [the Court of Final Appeal].”

4.The applicant lodged written submissions in support of the application on 25 April 2023.  In the written submissions, the applicant set out his immigration history, the factual background to the apparent threats he would face should he be refouled, as well as the procedural background to the processing and determination of his non-refoulement claim. He also submitted (at pp.3-4) that:

“… I came to the High Court for leave to apply for judicial review. The High Court the Court of Appeal did not grant my leave. I wish the Court of Final Appeal will grant my leave. I wish the Court of Appeal will send my case to the Court of Final Appeal.”

5.Having considered the applicant’s Notice of Motion 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.

6.We think it necessary in this case to repeat this court’s observations on the applicant’s right to an oral hearing under O. 53 r. 3(3) of the Rules of the High Court, Cap.4A, which provides:

“The judge may determine the application for leave without a hearing, unless a hearing is requested in the notice of application, and need not sit in open court; and in any case the Registrar shall serve a copy of the judge’s order on the applicant.” (Emphasis added)

See: Re Mondal Sumitra Rani [2023] HKCA 1063; Re Pervin Jahanara [2023] HKCA 1064.

7.In the present case, under the section “Relief Sought” at [3] of the Form 86 filed on 25 April 2019 (being the applicant’s Notice of Application for Leave to Apply for Judicial Review), the applicant requested an oral hearing under O. 53 r. 3(3) “if leave to apply for judicial review is not granted on the papers”.  According to the court’s records, despite the applicant’s request, the application had not been listed or fixed for hearing (contrary to the Judge’s mistaken belief: see [2] of the CALL-1 Form).

8.By a letter dated 23 March 2022 to the applicant, the Judge’s clerk informed him of the following:

“We refer to your application for leave to apply for judicial review of the Torture Claims Appeal Board’s Decision. You requested an oral hearing.

However, due to the COVID-19 pandemic, we will try to avoid attendance in court unless it is not possible to do so. Please submit your written submissions to court within 7 days from the date of this letter. However, if you are of the view that it is impossible to present your case on paper, you should inform the court immediately, stating the reasons. A hearing date will be fixed for you.

If the court does not receive response from you within 7 days from the date of this letter, the court will proceed to assess your case on paper. A written decision will be sent to you at your last known address.”

9.The applicant did not respond to that letter, resulting in the Judge’s decision to determine his application on the papers (see [3]-[4] of the CALL-1 Form).

10.As previously held by this court (Chu VP and Au JA), in light of the clear wording of O.53 r.3(3), it was not open for the Judge to determine the leave application on the papers by reason of the applicant’s express request for an oral hearing.   The Judge’s discretionary power to determine the application without a hearing had no application in the circumstances.  See Re Mondal Sumitra Rani at [19]-[21]. 

11.For this reason, it was arguable that the Judge had erred in law and fact in determining the applicant’s application for leave to apply for judicial review without an oral hearing.  See Re Pervin Jahanara at [20].

12.However, unlike the applicant in Re Pervin Jahanara (who had before this court complained that the “process” by which the Judge dismissed her application was “totally wrong”; see [19]), and the applicant in Re Mondal Sumitra Rani who complained of the lack of an oral hearing, the applicant in the present case in his Notice of Appeal filed on 30 September 2022 made no such complaint, but merely stated that he wished to challenge the Judge’s “order” and that he “will show some important argument”, without providing any particulars or elaboration.  Likewise, the applicant did not in his written submissions (lodged on 14 October 2022 in support of the substantive appeal) make any complaints as to the process by which the Judge reached his decision.

13.Similarly, the applicant also made no such procedural complaints in the Notice of Motion, but only commented that the Judge’s decision, as well as the judgment of this court, were “not good for [him]”.

14.Further, and importantly, as we stated in our judgment at [12]-[13] the applicant’s application before the Judge identified no public law grounds for interfering with the Board’s decision.  The application for judicial review was thus wholly without merit, and would in any event have failed.  

15.Further, notwithstanding our observations above on the Judge’s failure to fix an oral hearing pursuant to O. 53 r. 3(3), the present application is one for leave to appeal to the Court of Final Appeal, where it is incumbent upon the applicant to identify any question(s) 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.  No such question is apparent to us from the matters he has raised.  Nor do the Notice of Motion or written submissions identify any ground that is reasonably arguable before the Court of Final Appeal. 

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

17.For these reasons, the Notice of Motion dated 11 April 2023 is dismissed.  

The applicant acting in person