RE AHMED TOSIF

CAMP 196/2018

[2019] HKCA 787

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 196 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 1102 OF 2017)

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JUDGMENT

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

1.  On 30 May 2019, this Court (Chu and Barma JJA) handed down our judgment^[1] refusing to give leave to the applicant to appeal out of time against the decision of Campbell-Moffat J (“the Judge”) given on 31 August 2018 refusing him leave to apply for judicial review.

2.  On 3 June 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal. 

3.  On 5 June 2019, the Registrar of Civil Appeals gave directions for the filing of written submission (“the Directions”).  On 21 June 2019, the applicant lodged with the Court a letter bearing the heading “Skeleton Submission”, together with a 24-page attachment.  By the court’s letter dated 27 June 2019, the applicant was informed that the document did not comply with paragraph 2 of the Directions, and the Registrar of Civil Appeals had directed that unless by 4:00 pm on 9 July 2019 he lodged a written submission in compliance with the Directions, he shall be debarred from lodging any written submission and be deemed to rely only on what was stated in the Notice of Motion.  Despite this, the applicant only lodged a written submission on 18 July 2019. 

4.  Having considered the Notice of Motion and written submission, 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 his notice of motion.

5.  The Notice of Motion stated that: (i) there was some error in law in the decision; (ii) the decision maker just relied on country of origin information (“COI”) and facts that favoured the rejection of the applicant’s claim; (iii) the situation was different from what was stated in the COI, but the Court chose to ignore the overwhelming evidence of violence towards minorities; and (iv) the decision was biased and adopted a formulaic approach, and did not assess the danger to the applicant’s life.  

6.  The written submission argued that: (i) high standards of fairness are required in determining torture claims, and that the court’s decision had the effect of finally disposing of the applicant’s torture claim, making him liable to be removed, citing ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289; (ii) a discretionary decision is liable to be set aside if it is Wednesbury unreasonable, citing two UK decisions; and (iii) under section 37ZT of the Immigration Ordinance, Cap. 115, the Board may have regard to the matters set out in paragraphs (8)(a) and (b) of the written submission in dealing with late filing of notice of appeal.  

7.  For the reasons set out below, we are of the view that the Notice of Motion must be dismissed.

8.  In the first place, we have refused to grant leave to the applicant to appeal the Judge’s decision out of time.  Our decision is final and not amenable to further appeal to the Court of Final Appeal: see section 14AB of the High Court Ordinance, Cap. 4; The Incorporated Owners of Po Hang Building v Sam Woo Marine Works Ltd (2017) 20 HKCFAR 240; and Re Maya Setianingrum Jumbadi (unreported) [2019] HKCA 175 at [7].

9.  In any event, the matters stated in the Notice of Motion and the written submission do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484.  Secondly, the applicant had not given any grounds for his intended judicial review.  Nor had he provided any proposed grounds of appeal in his applications for leave to appeal out of time made to the Judge and to this Court.  His complaint about COI made in the Notice of Motion is a new point, which had not been discussed in either the Judge’s decision or this Court’s judgment.  Likewise, the arguments in the written submission on about the duty to act fairly and the Wednesbury unreasonableness principle are completely new points.  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.[2]  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.[3]  Thirdly, for the reasons given in [18] of this Court’s judgment, the applicant’s assertion that his life will be in danger is not arguable.  Fourthly, the applicant has provided no particulars to support his assertion that our judgment is biased and unfair.  There is also no basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  Accordingly, we dismiss the Notice of Motion.