RE SHAIKH ABDUL SAMAD

CACV 394/2018

[2019] HKCA 141

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 394 OF 2018

(ON APPEAL FROM HCAL 359/2018)

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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 10 October 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 2 August 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 appeal, 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 27 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1. The learned courts below have failed to understand the applicant’s claim in its true later and spirit the reason is that the applicant only understand and speak Urdu and might failed to express his case before the honourable judges courts below.

2.   The applicant was kept in dark about the fact that he has a right of appeal so the applicant didn’t file the appeal.  The appellant was not instructed about the procedure of the court in Hong Kong.  On the other hand the applicant under medical problem.  And treatment almost throughout his stay at Hong Kong…”

4.  The applicant attached 2 pages to his notice of motion explaining that he will be killed upon his return to Pakistan.  Further, he said that he had fractured his backbone and is currently under treatment.

5.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 29 November 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s notice of motion, 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 his notice of motion.

7.  The matters stated by the applicant in his notice of motion 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 in his notice of motion.  

8.  We have dealt with the applicant’s explanation for the delay in bringing the leave application at [14] of our judgment.  Having considered the Notice of Motion, we can find nothing amiss in our judgment.

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 27 November 2018 is dismissed.