RE AQEEL AHMED alias CHOUDHRY AQEEL AHMED

CACV 192/2019

[2021] HKCA 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2019

(ON APPEAL FROM HCAL 1077/2017)

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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 16 April 2020, this court (Cheung JA, Chu JA and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 12 April 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions 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 filed on 13 May 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The court relied on the fact and the decision was predictive and based on Director of Immigration Department. However, that does not depreciate the need of review in a case involving actual risks to continued access to justice.

The learned judge erred in finding that there was no state protection available despite the fact that the alternative approach to seek justice in Pakistan are more conjecture.  If the Hong Kong Government send me back to Pakistan, then I will have life-threatening”

4.  The applicant lodged a written submission in support of the application on 23 June 2020.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion.  He further contended that:

“The present proceedings should be settled in the similar manner as in the case of AH v Torture Claims Appeal Board and Another (HCAL 34/2016), the Director of Immigration Department should be consider the case afresh in a different way and if necessary the BOR 2 should be done separately. The Director need to re-screen the my non-refoulement claim considering the additional grounds which was not previously represented and or recognized, so that a fair justice is served.”

5.  Having considered the applicant’s Notice of Motion and written submission, 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.  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.  

7.  We note that, hitherto, the applicant has not raised any complaint related to the re-screening of his claims and state protection in his notice of appeal filed on 23 April 2019.  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]  Further and in any event, these grounds lack particulars and are therefore bound to fail.

8.  As for the remaining ground based on the over reliance on the Director’s decision, this ground also lacks particulars and we are of the view that it is not reasonably arguable before the Court of Final Appeal.

9.  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 13 May 2020 is dismissed.