RE SHAH JAMAL

CACV 536/2018

[2019] HKCA 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 536 OF 2018

(ON APPEAL FROM HCAL NO 109 OF 2018)

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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.  By a judgment dated 8 April 2019 ([2019] HKCA 400) (“the Judgment”), this Court (Hon Chu, Barma and Au JJA) dismissed the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) dated 19 October 2018 refusing his leave to apply for judicial review (“the Judge’s Decision”).  The intended judicial review was against the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (“the Board”) dated 23 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 21 August 2015 and 7 June 2017 rejecting his non‑refoulement claim.  The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  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.

3.  By a Notice of Motion dated 18 April 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the handwritten Notice of Motion, the applicant set out the following grounds:

“I would like to inform to court. There is some error in law in my decision. I think someone made mistake on my case because of my fearness… and I never got any opportunity to explain my verbal explanation to honourable judges because I have some problem and left here in my country. my humble request from you retest my case to find the justice and protection to my life. Thank you.” [sic]

5.  In compliance with the directions given by Master Au-Yeung on 24 April 2019, the applicant lodged his written submission on 2 May 2019.  In his written submission, the applicant did not elaborate his case but merely stated that:

“…I want to tell that I was try my best to take my supporting document from my country. but according to my situation still I never got any document because nobody there to obtain and send me.

Therefore give me the time to find some of my friend to take as soon as possible and the reason is somebody very scared to take they think that…they help me they can be in trouble but my verbal statement are true but at this moment I am helpless person.” [sic]

6.  Although the applicant stated in the Notice of Motion that there was error in law, he failed to identify the alleged errors and merely stated that he was not given an opportunity to explain his case and that he needed time to locate some of the supporting documents.

7.  We have duly considered the applicant’s Notice of Motion and his written submission.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

8.  First of all, we have dealt with the applicant’s abandonment of right to an oral hearing at [2] ‑ [3] of the Judgment.

9.  Secondly, in the applicant’s written submissions, he merely repeated those advanced before this court that he needed some more time to locate supporting documents and we have found that it was not a viable ground: see [16] of the Judgment.

10.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted 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 Court of Final Appeal for decision.

11.  None of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds.

12.  In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s Decision.  None of the questions raised by the applicant in the Notice of Motion or in his written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

13.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.