RE NARESH MASIH

CAMP 258/2021

[2021] HKCA 1824

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 258 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 1558 OF 2018)

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J U D G M E N T

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

1.  On 11 October 2021, this court handed down judgment ([2021] HKCA 1479)  dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge Lung given on 29 June 2020 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 20 October 2021, the applicant filed a Notice of Motion to apply for leave to appeal this court’s judgment to the Court of Final Appeal.  The applicant has also lodged a written submission on 8 November 2021.

3.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

6.  The Notice of Motion set out the following grounds in support of the application:

(1)  There is some error in the decision. The decision maker just relied on country of origin information (COI)  and facts that favour a dismissal of the applicant’s claim.

(2)  The judges were wrong as a matter of law for not applying the principle of irrationality to the Director of Immigration’s decision.

(3)  The actual situation is different than what is mentioned in the COI.  The immigration officer and the courts prefer to ignore the overwhelming evidence of the violence towards the minorities.

(4)  The Judge did not apply the law properly.

7.  The written submission quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to section 37ZT of the Immigration Ordinance, Cap. 115, which relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposing of the applicant’s claim.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b)  of the Ordinance. Further, the grounds stated in the Notice of Motion were not raised in the applications made to the Judge or the renewed application made to this Court. It is not permissible to raise them in an application for leave to appeal to the Court of Final Appeal.  As to the written submission, it has not been shown how the provisions and legal propositions quoted in it relate to the applicant’s case. The reference to section 37ZT of the Immigration Ordinance is misplaced because we are not concerned with late filing of notice/petition to appeal with the Board.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

9.  As the statutory requirements for giving leave to appeal are not met, we accordingly dismiss the Notice of Motion.