RE KHAN AMIR DAD

CAMP 154/2019

[2021] HKCA 616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 154 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 786 /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 30 December 2020, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 21 May 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 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 5 January 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. The [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. There is some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favor on rejecting my claim.

3. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

4. The Judge did not apply the law properly.”

4.  The applicant lodged a written submission in support of the application on 18 January 2021.  In the written submission, the applicant submitted that:

(1)  the Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases;

(2)  the Board failed to properly assess his credibility; and

(3)  the Board’s decision was Wednesbury unreasonable.

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 documents filed.

6.  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.  

7.  The applicant did not raise the matters in the Notice of Motion when he renewed the extension of time to appeal application before this court.  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]

8.  The written submission dated 18 January 2021 is substantially similar to the submission filed on 22 July 2019.  As we have held in [16] – [17] of our judgment, those grounds are not viable grounds of appeal and they would also fail for lack of particulars.  In our view, those grounds are not reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the Notice of Motion dated 5 January 2021 is dismissed.