RE SHAMROZ KHAN

CACV 530/2018

[2019] HKCA 581

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 530 OF 2018

(ON APPEAL FROM HCAL NO. 900 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 4 April 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Campbell-Moffat J given on 19 October 2018 refusing him leave to apply for judicial review.     

2.  On 12 April 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 Appeal, 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.  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) There was error in law in the decision; (ii) The decision maker just relied on country of origin information and facts that favour the dismissal of the applicant’s claim when the actual situation was different; (iii) The officer and the courts ignored the violence committed on minorities; and (iv) The decision was biased and adopted a formulaic approach and did not fairly assess the danger to the applicant’s life.   

6.  The matters set out in the Notice of Motion do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they have not identified any question of great general or public importance, as required by section 22(1)(b).  Secondly, for the reason we gave in [10] and [11] of our Judgment, the applicant’s assertion that his life would be in danger if he were refouled is untenable.  Thirdly, the complaints about violence on minorities and unfair assessment of the applicant’s danger are new grounds that had not been raised in the appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.[2]  Nor 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]       

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

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