RE RAHMAN ABDUR

CACV 369/2018

[2019] HKCA 629

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2018

(ON APPEAL FROM HCAL 746/2017)

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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 26 February 2019, this court (Lam VP, Kwan VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of D’Almada Remedios J (“the judge”) on 24 July 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 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 dated 8 March 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. [judges] were wrong as a matter of law for not having applied the principle of irrationality to the [Director’s Decision] refusing my application for judicial review.

2. [judges] were wrong as a matter of law for not having applied the principle of procedural unfairness to the [Director’s Decision] whereby the Director was required to give reasons justifying the decision.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 21 March 2019.  In the written submission, the applicant submitted that:

(1) his legal aid application was refused and he had not been able to afford proper legal representation.  He had difficulty in getting translation.  These matters led to procedural unfairness;

(2) the Board erred in evaluating the Country of Information material.  The judge should have held that this constituted an error of law;

(3) the court should have adopted the test in Sufi & Elmi v UK (Applications nos 8319/07 and 11449/07).

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 Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission 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 in the Notice of Motion and written submission.  

7.  As we have held in [15] of our judgment, the applicant did not advance the ground based on legal representation and language assistance in his application for judicial review.  It was thus not open to the applicant to advance this ground well outside of the time limit for judicial review.

8.  We note that, hitherto, the applicant has not raised any complaint based on Country of Origin information, the alleged failure to give reasons by the Director, or the Sufi & Elmi case.  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]

9.  As for the ground based on irrationality, this ground is vague and lacks particulars.  In our view, it is not reasonably arguable before the Court of Final Appeal.

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

11.  For these reasons, the Notice of Motion dated 8 March 2019 is dismissed.