RE HASHEM ALI

CACV 596/2018

[2020] HKCA 39

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 596 OF 2018

(ON APPEAL FROM HCAL 483 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 17 May 2019 ([2019] HKCA 554) (“the Judgment”), this court (Hon Au JA, Lisa Wong and ST Poon JJ) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) as set out in the Form CALL-1 dated 11 December 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2574, refusing leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 March 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration respectively dated 14 May 2015 and 5 June 2017 rejecting the applicant’s non-refoulement claim.

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 6 June 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

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.

6.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in the COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

7.  In compliance with the directions given by Master Au-Yeung on 11 June 2019, the applicant lodged his written submissions on 20 June 2019.  In the written submissions, he quoted the same passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 as he did before this court.  He further stated, in summary, that (a) the adjudicator acted in a procedurally unfair manner; (b) the decision could be set aside if it is Wednesbury unreasonable; and (c) the Board should consider the requirements under section 37ZT of the Immigration Ordinance (“the IO”) for late filing of notice of appeal.

8.  We have duly considered the applicant’s Notice of Motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

9.  In our view, this application is devoid of merits.

10.  First, nowhere in the applicant’s Notice of Motion or written submissions identified any errors in the Judgment.

11.  Second, the grounds of appeal and arguments in the applicant’s written submissions were against the Board, which had been dealt with by the Deputy Judge.  He had found that there were no errors in law or procedure: see [43] of the Deputy Judge’s Decision.  We do not find any errors in his decision: see [22] of the Judgment.

12.  Third, we have already explained in the Judgment that the authorities relied upon by the applicant did not assist his appeal at [20] - [21].  The rest of the complaints raised by the applicant with regards to country of origin information in his Notice of Motion and the arguments in his written submissions about procedural unfairness, Wednesbury unreasonableness and section 37ZT of IO were not argued 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 application before it[1] nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].

13.  In other words, none of the grounds raised by the applicant are viable grounds that warrant the grant of leave to challenge the Judgment to the Court of Final Appeal.

14.  In any event, for the reasons that we have given above, we do not see any prospect of success in the applicant’s intended appeal against the Judgment.  Further, none of the questions raised by the applicant in the Notice of Motion or in his written submissions involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

15.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.