RE HOSSAIN MD FARUK

CAMP 94/2018

[2019] HKCA 132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 94 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 947 OF 2017)

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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 3 December 2018, this Court (Chu and Pang JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 4 May 2018.

2.  By a Notice of Motion dated 11 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also lodged a written submission on 27 December 2018. 

3.  Having considered the Notice of Motion and the 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 his notice of motion.

4.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

5.  The Notice of Motion stated that: (i) The decision maker just relied on country of origin information (“COI”) and previous facts which favoured the rejection of the applicant’s claim. Actual situation was different to that mentioned in the COI; (ii) Officer and courts ignored the overwhelming evidence of the violence on minorities; and (iii) The decision betrayed a biased and formulaic approach that did not fairly assess the danger of the applicant’s life and was clearly unreasonable.  

6.  The written submission cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required.  It also referred to some authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner.  It further referred to section 37ZT of the Immigration Ordinance, Cap. 115 and argued that, in cases of late filing of notice of appeal, the Board may only take account of (a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence; and (b) any other relevant matters of fact within the Board’s knowledge. 

7.  The matters contained in the Notice of Appeal and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

8.  Firstly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  What was set out in the Notice of Motion and written submission only relate to the circumstances of the applicant’s case. 

9.  Secondly, the proposed grounds in the Notice of Motion and the arguments in the written submission were not argued in the application to this Court for leave to appeal out of time as the applicant had provided no proposed grounds of appeal in the application.  It is not the practice of the Court of Appeal to grant leave on new points that were not canvassed in the previous application or appeal before it[2].  Neither is it the general practice of the Court of Final Appeal to grant leave on new fact sensitive point not argued in the Court of Appeal[3].  In any event, the grounds of appeal and arguments put forward in the present application are unarguable.       

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

11.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.