RE RASHID

CAMP 10/2020

[2020] HKCA 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 10 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 140/2018)

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J U D G M E N T

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

1.  On 24 June 2020, the Applicant filed his Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Lam VP, Barma JA) judgment of 17 June 2020.

2.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

3.  The Applicant has set out the following matters in his Notice of Motion for leave to appeal to the CFA:

“ The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decisions of the director of whereby the director and the adjudicator was required to give reasons justifying the decision.

The learned Judges were wrong as a matter of law for not having applied the principle of irrationality in considering the decision made by the director of Immigration.

I will face hardship if I return to my country.

The Judge did not apply the law properly.” [sic]

4.  The Applicant’s written submissions of 7 July 2020 in support of this application are identical to his written submissions of 16 March 2020 that were placed before us on appeal and are also identical to his submissions of 21 October 2019 that were placed before the Judge below.  The only discernible complaint in those submissions is that the Board acted in a procedurally unfair manner by failing to properly assess the Applicant’s credibility.

5.  We are of the view that the Applicant has not raised any reasonably arguable ground of appeal on the merit of his claim.  The Applicant’s written submissions merely repeated his earlier submissions which were duly rejected by us and the Judge below.  He did not raise any discernible or arguable ground for disturbing our judgment.

6.  Though it has recently been held by the Court of Final Appeal in H v Director of Immigration [2020] HKCFA 22 that an applicant did not need Section 14AA leave to appeal to this Court in respect of a refusal of extension of time to bring an application for leave to judicial review, and technically an appeal can be brought to this Court by way of appeal out of time, it cannot assist the Applicant in this instance because:

(a)  The present application is made in respect of our judgment on refusal of Section 14AA leave and it serves no purpose for an appeal to the Court of Final Appeal regarding such refusal of leave.  The reversal of our decision on Section 14AA leave would not automatically lead to success in his appeal against the Judge’s decision of 16 October 2019.  To achieve that he needs to bring an appeal to this Court;

(b)  Due to lapse of time, the Applicant needs an extension of time to bring an appeal to this Court and if he made such application, the Court will have regard to the merits of his intended appeal in deciding if extension should be granted;

(c)  Having regard to our views on the lack of merit in his intended appeal as set out at [19] to [24] of our judgment of 17 June 2020, the Court will not grant extension of time for a futile appeal to be brought.  

7.  In the circumstances, we do not consider that there is any question of great general or public importance or otherwise which ought to be submitted to the CFA for determination.

8.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Applicant’s Notice of Motion.