RE IQBAL NASIR

CACV 183/2018

[2018] HKCA 899

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2018

(ON APPEAL FROM HCAL 531/2017)

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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 13 August 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 14 May 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 28 August 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

(1) the high standard of fairness requires that legal assistance be provided to the applicant for his claim based on BOR2 risk before the Director, his appeal to the Board and his leave application;

(2) the applicant needed an extra 3-4 months to solve his problems before he can return safely; and

(3) the applicant is not proficient in English.  He had to rely on his friends to understand the content of court documents.  He had no means to find out if the grounds have been stated correctly.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 10 September 2018.  In his written submission, the applicant reiterated the matters raised in the notice of motion.

5.  Having considered the applicant’s notice of motion and written submission, 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 and written submission.

6.  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 in accordance with 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 and his written submission.  

7.  We note that, hitherto, the applicant had not raised any complaint regarding the lack of language assistance and legal assistance in the notice of appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

8.  As for the ground based on the alleged need to resolve his problems before he can safely return, we have considered this ground at [13] and [14] of our judgment.  It is an abuse of the court process to prolong the stay in Hong Kong by way of a judicial review application.  In our view, this ground is plainly not reasonably arguable before the Court of Final Appeal.

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 28 August 2018 is dismissed.