MOLLA MD SHANTO v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 385/2020

[2021] HKCA 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 385 OF 2020

(ON APPEAL FROM HCAL NO 1962 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

1.  This court (Hon Lam VP and Yuen JA) handed down judgment on 18 February 2021 ([2021] HKCA 176) (“the Judgment”) dismissing the applicant’s appeal against an order of DHCJ Bruno Chan (“the Judge”) given on 4 August 2020 refusing to give the applicant leave to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.  On 17 August 2020, the applicant filed a Notice of Appeal in CACV 385/2020 before this court to appeal against the Judge’s Decision.  For reasons set out in the Judgment, the appeal was dismissed.

3.  On 1 March 2021, the applicant filed a Notice of Motion for leave to appeal the Judgment to the Court of Final Appeal on the following grounds:

“1. The learned 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 favour 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.  Pursuant to the directions made by the Registrar of Civil Appeals on 3 March 2021, the applicant should lodge his written submissions on or before 15 March 2021.  The applicant did so on 17 March 2021 which is a minimal delay. The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do, we proceeded to determine this application on paper. 

5.  In his written submissions, the applicant advanced the following grounds:

(1)  It is his substantive human right not to be subject to torture and high standards of fairness are required in determination of his non-refoulement claim as the decision had significant implications for his substantive right and his claim.  He quoted some passages in Secretary for Security v Sakthevel Prabakar[1] in support of his assertions. 

(2)  The Adjudicator had acted in a procedurally unfair manner without properly assessing his credibility.  He averred that by the doctrine of reasonableness, an administrative decision should be set aside if it was unreasonable.  He cited Associated Provincial Picture Houses Limited v Wednesbury Corporation[2] and R v Ministry of Defence ex p. Smith[3] in support of his complaint.

(3)  He referred to section 37ZT of the Immigration Ordinance (Cap. 115) which is a provision concerning the late filing of notice of appeal to the Board.

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

7.  The applicant’s intended appeal has no merit at all.  The grounds and submissions are general, and the reference to the statutory provision is irrelevant.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.     

8.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

9.  By reason of the above, the Notice of Motion filed on 1 March 2021 is dismissed.