RE HUSSAIN ARIF

CAMP 197/2018

[2019] HKCA 784

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 197 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 1071 OF 2017)

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JUDGMENT

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

1.  On 30 May 2019, this Court (Chu and Barma JJA) handed down our judgment^[1] refusing to give leave to the applicant to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 31 August 2018 refusing him leave to apply for judicial review.

2.  On 24 June 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions of the Registrar of Civil Appeals, the applicant has not lodged any written submission to support his application. 

3.  Having considered the applicant’s notice of motion, 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 his notice of motion.

4.  The Notice of Motion stated that: (i) there was some error in law in the decision; (ii) the decision maker just relied on country of origin information (“COI”) and facts that favoured the rejection of the applicant’s claim; (iii) the situation was different from what was stated in the COI, but the Court chose to ignore the overwhelming evidence of violence towards minorities; and (iv) the decision was biased and adopted a formulaic approach, and did not assess the danger to the applicant’s life.    

5.  In the first place, we have refused to grant leave to the applicant to appeal to this court against the Judge’s decision out of time.  Our decision is final and not amenable to further appeal to the Court of Final Appeal: see section 14AB of the High Court Ordinance, Cap. 4; The Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240; and Re Maya Setianingrum Jumbadi (unreported) [2019] HKCA 175 at [7].

6.  In any event, the matters stated in the Notice of Motion do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Secondly, the applicant had not given any proposed grounds of appeal in both his applications to the Judge and to this Court for leave to appeal out of time.  His present complaint about COI is a new point, which has not been discussed in either the Judge’s decision or this Court’s judgment.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2] Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal.[3]  Thirdly, for the reasons given in [18] of this Court’s judgment, the assertion that the applicant’s life will be in danger is not arguable.  Fourthly, the applicant has provided no particulars to support his assertion that our judgment is biased and unfair.  There is also no basis to grant leave on the “otherwise” limb under section 22(1)(b).

7.  For the above reasons, we dismiss the Notice of Motion.