RE IRFAN AHMED

CAMP 382/2022, [2023] HKCA 1164

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 382 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO. 2318 of 2018)

__________________________

__________________________

________________

JUDGMENT

________________

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

1.  On 21 July 2023, this Court handed down our judgment ([2023] HKCA 882) refusing to extend the time for the applicant to appeal the decision of Deputy High Court Judge Lung given on 24 May 2022 which refused to give him leave to apply for judicial review.

2.  On 15 August 2023, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal. Despite directions given by the Registrar of Civil Appeals, he has not put in a written submission to support the application.

3.  Having considered the applicant’s notice of motion and affirmation, 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 the documents in the case.

4.  The background to this case and the applicant’s claim has been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 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.

6.  The notice of motion stated the following in support of the application:

(1) The court was wrong as a matter of law for not having applied the principle of irrationality to the decision of the Director of Immigration.

(2) There is some error in law in the decision. The decision maker only relied on country of origin information (“COI”) and facts that favour the dismissal of the applicant’s claim.

(3) Actual life situation is different from what is stated in the COI. The decision maker and the court ignore the overwhelming evidence of violence towards the minorities.

(4) The Judge did not apply the law properly.

7.  The applicant also stated in his affirmation that he has a good ground of appeal, but did not elaborate on what the ground is.

8.  We are of the view that the matters set out in the notice of motion and affirmation do not afford any basis for granting leave to appeal. Importantly, they all concern the applicant’s claim and personal circumstances, and do not show that the intended appeal involves any question of great general or public importance. Further the grounds in the notice of motion were never raised by the applicant before the Judge in his application for leave to apply for judicial review. Nor were they raised before this Court in the renewed application for extension of time to appeal. It is not open to the applicant to advance new arguments in an application for leave to appeal.

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

10.  As the statutory requirements for giving leave to appeal are not met, it is futile to extend the time for the filing of the notice of motion. Accordingly, we dismiss the notice of motion.