RE ZAMAN MUHAMMAD

CACV 150/2018

[2018] HKCA 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2018

(ON APPEAL FROM HCAL 905/2017)

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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 10 August 2018, this court (Cheung CJHC and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”)on 4 May 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 a decision of the Director of Immigration rejecting his non‑refoulement claim.

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 dated 4 September 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that the judgment was unfair and unreasonable.  In the affirmation of the same date, the applicant identified two issues of great general or public importance:

(1) whether lack of legal representation is a reasonably arguable basis to challenge the fairness of process; and

(2) whether there ought to be an additional basis for advancing a case on the BOR2 risk separate from the BOR3 risk, torture risk and persecution risk.

4.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 6 September 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

5.  Having considered the applicant’s notice of motion and affirmation, 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 his notice of motion and affirmation.

6.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave 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 in accordance with 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 his notice of motion and his written submission.  

7.  We note that although the applicant relied on the lack of legal assistance in the Form 86, he did not rely on this ground in the appeal to this court.  We have in any event concluded at [19] of our judgment that the judge was right in dismissing all the grounds for the leave application.  The ground based on the separation of BOR2 risk from the other risks was also not advanced before this court.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

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

9.  For these reasons, the notice of motion dated 4 September 2018 is dismissed.