RE SK SIRAJ UDDIN

CAMP65/2019

[2021] HKCA 326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 65 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 727/2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  On 7 May 2020, this court (Yuen JA and Barma JA) handed down a judgment dismissing the applicant’s application for leave to appeal out of time against the decision of Campbell-Moffat J (“the judge”) on 24 August 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 decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the application, 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 22 May 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1.  The learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration, refusing my application for judicial review.

2.  The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim. The judge did not apply the law properly.

3.  The decision maker just relied on COI information and my previous facts which were in favour on rejecting my claim.

4.  Actual life occur different situation than mentioned in COI information, officers and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.”

4.  In the affirmation dated 22 May 2020, the applicant deposed that:

“Leave be granted to me to file notice of motion out of time. I was unaware of the procedural regularities as a lay person.”

5.  The applicant lodged a written submission in support of the application on 11 June 2020.  In the written submission, the applicant referred generally to a number of cases on high standard of fairness without explaining the relevance of those cases.  He also referred to section 37ZT of Immigration Ordinance, Cap 115 which relates to the late filing of notice of appeal to the Board, a matter that does not appear to be relevant to his application.

6.  Having considered the applicant’s Notice of Motion, affirmation 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.

7.  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.  

8.  In the written submission, the applicant referred to a number of authorities and to section 37ZT of the Immigration Ordinance without explaining their relevance.  They do not disclose any viable ground of appeal.

9.  As for the ground based on irrationality in the Director’s Decision, this was never raised as a ground of appeal in the summons dated 12 April 2019.  There was therefore no need for this court to consider whether the principle of irrationality had any application to the Director’s Decision.  In any event, this ground lacks particulars and is therefore in our view not reasonably arguable before the Court of Final Appeal.

10.  We also note that none of the grounds advanced in the Notice of Motion, affirmation and written submission have been advanced as a ground of appeal in the application before this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed 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]

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

12.  For these reasons, the Notice of Motion dated 22 May 2020 is dismissed.