RE MUDASSAR

CACV 479/2018

[2019] HKCA 891

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 479 OF 2018

(ON APPEAL FROM HCAL NO 21 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  By a judgment dated 11 March 2019 ([2019] HKCA 285) (“the Judgment”), this Court (Hon Au JA, Fung and Yau JJ) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) dated 14 September 2018 refusing his leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 15 September 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”). The applicant now seeks leave to appeal to the Court of Final Appeal.

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here.

3.  By a Notice of Motion dated 25 March 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“-The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

-On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

-The applicant oftenly did not have enough time to address the bundle, rest of the grounds I will submit as soon as possible ...” [sic]

5.  In his supporting affirmation filed on the same date, the applicant also listed some additional grounds that the court was wrong in law in holding that (1) there was no state acquiescence or involvement; (2) the court failed to find out the clear details of the current situation of Pakistan.

6.  In compliance with the directions given by Master Au‑Yeung on 27 March 2019 and 9 April 2019, the applicant lodged his written submission on 23 April 2019.  In his written submission, the applicant repeated his claim and his personal background.  He also cited some legislations, such as Basic Law, Hong Kong Bills of Rights Ordinance, and Conventions against Torture.  He then quoted some general principles from Secretary for Security v Sekthevel Prabakar [2005]1 HKLRD 289, AM v Director of Immigration and William Lam HCAL 102/2012, ST v Betty Kwan CACV 115/2013, Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v Wesley Wong HCAL 1/2014, R v Commissioner for Local Administration, ex parte Croydon LBC [1989] 1 All ER 1033, and Regina v Secretary of State for the Home Department [1987] 1 WLR 1482.

7.  For the 1^st ground of appeal, he quoted some passages from ST v Director of Immigration [2014]4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005]1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim and, for the 2^nd ground of appeal, from The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243; and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.”  He also argued that the decision maker was Wednesbury unreasonable.  Apart from that, he failed to identify any errors in the Judgment.

8.  We have duly considered the applicant’s Notice of Motion, his accompanying affirmation and written submission. Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

9.  First of all, the grounds advanced in the applicant’s Notice of Motion and supporting affirmation were not viable grounds.  It appeared to be a complaint addressed against the duty lawyer’s performance and yet there was no evidence that such complaint was made to the duty lawyer service nor was it argued before the Deputy Judge or this court.  Further, we have dealt with the grounds in his affirmation at paragraphs 10 - 20 of the Judgment.  In any event, those were not grounds to challenge the Deputy Judge’s Decision or the Judgment.

10.  Secondly, the authorities quoted in the skeleton submissions do not assist the applicant in this appeal. Those were general principles that both this court and the Deputy Judge borne in mind when determining the applicant’s case.  Further, the authorities cited in support his two grounds of appeal were those he cited before this court and we have already dealt with it at paragraphs 22 - 23 of the Judgment.  The applicant had failed to identify any errors in the Judgment.

11.  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.

12.  As mentioned, none of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds.

13.  In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Deputy Judge’s Decision.  None of the questions raised by the applicant in the Notice of Motion or in his written submission involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

14.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.