RE IJAZ MUHAMMAD

CACV 126/2021

[2021] HKCA 1748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2021

(ON APPEAL FROM HCAL NO 1541 OF 2018)

____________________

____________________

____________________

J U D G M E N T

____________________

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

1.  On 17 September 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Lisa Wong J) judgment of 16 August 2021 (“the Judgment”) ([2021] HKCA 1192).  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 8 July 2020 refusing to grant to the applicant leave to apply for judicial review ([2020] HKCFI 1421).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  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 Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant asserted that he did not know that his failure to lodge the skeleton submissions would cost him an oral hearing.  He further asserted that the Judges were procedurally unfair and that the decisions of the Torture Claims Appeal Board / Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration were unfair.  In his supporting affirmation, he stated that his was out of time to submit the Notice of Motion as he did not know the deadline of the Notice of Motion.

5.  The applicant lodged his written submissions on 24 September 2021.  In those submissions the applicant cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 for the proposition that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

6.  Pursuant to section 24(2) of the HKCFAO, the Notice of Motion shall be filed within 28 days from the date of the judgment to be appealed from.  Taking into account the summer vacation of the Court in August, the deadline for filing the Notice of Motion was 28 September 2021.  Accordingly, the Notice of Motion was filed within time.

7.  That said, in our view, his application is devoid of merits.  None of the matters raised in his Notice of Motion, supporting affirmation or written submissions identified any errors with specific particulars in the Judgment.  They are therefore not viable grounds.

8.  Further, the matters raised in his written submissions lodged on 24 September 2021 were essentially those previously advanced by the applicant but rejected by us at [20] ‑ [21] of the Judgment.

9.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.  For these reasons, the Notice of Motion filed on 17 September 2021 is dismissed.