RE KHAN ZAINUL ABEDIN

CAMP 33/2019

[2019] HKCA 1250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 33 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 810 OF 2017)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 14 August 2019 ([2019] HKCA 857), the Court of Appeal refused to grant an extension of time for the applicant to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 3 August 2018 in HCAL 810/2017 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 October 2017.

2.  By a notice of motion dated 27 August 2019, the applicant seeks leave to appeal to the Court of Final Appeal on the following grounds:

(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 in refusing his application for judicial review.

(2)    The judges were wrong as a matter of law for not having applied the principle of procedural unfairness and failed to give reasons to justify their decisions in rejecting his case.

(3)    The judges failed to apply the law properly.

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2019, the applicant lodged his written submissions on 17 September 2019.  In his written submissions, he set out some cases in relation to the legal principle of “high standard of fairness” and section 37ZT of the Immigration Ordinance (Cap. 115) but he did not elaborate how the said legal principle and provision would assist his case.

4.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application is processed on paper without an oral hearing.

5.  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.  Here, the grounds of complaints put forward by the applicant were broad and vague assertions without any particulars or specifics as to how the decisions made by the Judge as being irrational, procedurally unfair and wrong in law.  As stated in [18] of our judgment, we were satisfied that the Judge had reviewed the applicant’s case and the Board’s decision with rigorous examination and anxious scrutiny and we did not find any errors of law or procedural unfairness in either the Director’s and the Board’s decisions, nor any failure on their part to adhere the high standard of fairness in their consideration and assessment of the applicant’s case.  The applicant also failed to engage with our reasons in rejecting his case and/or pinpoint any errors of law in our judgement.  None of the grounds stated in the notice of motion and the written submissions can be constituted as valid ground of appeal to the Court of Final Appeal.  

6.  For the reasons that we gave in our judgment, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and the written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

7.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.