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CAMP152/2019
[2021] HKCA 613
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 152 OF 2019
(ON AN INTENDED APPEAL FROM HCAL 138/2017)
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Before: Hon Chu JA, Barma JA and Au JA in Court
Date of Judgment: 7 May 2021
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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 30 December 2020, this court (Chu JA and Barma JA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 10 November 2017 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 decision of the Director of Immigration rejecting his non-refoulement claim.
2. The facts and issues in the application, 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 20 January 2021, for leave to appeal to the Court of Final Appeal. The applicant stated in the Notice of Motion that:
“…I arrived in Hong Kong in 2009. I have spent half my life in H.K. This is clear incompetence of the Director of Immigration. He spent twelve (12) years for investigation and self imposed Decision…
The Director of Immigration did not deny my request. Nor did he seek information from Pakistan about my request.
Verify for justice judge me in the light of the investigation and the way of the details from Pakistan.
My request need to be reconsidered. The case of forced to leave the H.K. for self imposed reasons by immigration. I am not satisfy of the Director of Immigration non his self impoased decision.
I came to Hong Kong in the struggle to save my life. I still believed that my life is in danger in Pakistan.
I don’t want die for no reason!”
4. The applicant lodged a written submission in support of the application on 2 February 2021. In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return. He repeated his complaint about the Director’s decision in the Notice of Motion and claimed that he has “audio video evidence of incompetence of this sectors”.
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 the documents filed.
6. The matters stated by the applicant 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, as required by 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.
7. The applicant did not raise any of the grounds in this application when he renewed his application for extension of time to appeal before us. 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] Further, none of these grounds is related to an error in our judgment and they are therefore not viable grounds of appeal.
8. As for the bare assertion that it is unsafe for the applicant to return, the Board dismissed the appeal to the Board on the ground that the applicant’s case was not credible. The applicant has failed to establish any public law error in the Board’s Decision.
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 20 January 2021 is dismissed.
| (Carlye Chu) |
(Aarif Barma) |
(Thomas Au) |
| Justice of Appeal |
Justice of Appeal |
Justice of Appeal |
The applicant acting in person
[1] See [2020] HKCA 1079
[2] See Ageas Insurance Co (Asia) Ltd v Lam Hau Wah Inneo, CACV 65/2014, unreported, 19 May 2015, at [7] to [9]; and The Law Society of Hong Kong v A Solicitor, CACV 78/2014, unreported, 10 July 2015, at [4] to [7].
[3] See Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356 at [39].
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