RE MD ALIM SHEIKH

CAMP 66/2018

[2018] HKCA 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 66 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 975 of 2017)

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J U D G M E N T

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

1.  On 26 October 2018, this Court (Chu and Barma JJA) handed down our judgment (“the Judgment”) dismissing the applicant’s application for leave to appeal out of time the decision of Deputy High Court Judge Bruno Chan given on 13 April 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 30 October 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. The applicant has put in a written submission dated 13 November 2018 in support of the application.

3.  Having considered the applicant’s 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 and written submission.

4.  Under section 22(1)(b) of the Court of Final Appeal Ordinance, Cap. 484, this Court may grant leave to appeal to the Court of Final Appeal 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.

5.  The Notice of Motion did not set out any question for determination by the Court of Final Appeal.  It merely stated that: (1) there is error in law in the decision; (2) the decision maker relied on country of origin information (“COI”) and previous facts that favoured the rejection of the applicant’s claim when the actual situation was different from what was mentioned in the COI; (3) officers and courts had ignored overwhelming evidence of violence committed on the minorities; and (4) the decision betrayed bias and formulaic approach without fairly assessing the danger to the applicant’s life.

6.  In the written submission, the applicant gave an account of the facts underlying his claim.  He further argued that: (1) the decision entails real and significant implications for him in that it will finally dispose of his claim rendering him liable to be removed out of Hong Kong; and (2) the principle of high standards of fairness laid down in Secretary for Security v. Sakthevel Prabakar (2004) 7 HKCFAR 187 must be observed in the determination of torture claims.

7.  The matters put forward 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, as required by section 22(1)(b).  The matters raised in the notice of motion only relate to the circumstances of the applicant’s case.  The principle of high standards of fairness is well settled.       

8.  Further, we have pointed out in [19] of the Judgment that the applicant had failed to identify any errors in the Judge’s decision to refuse leave to apply for judicial review, and his intended appeal against the Judge’s decision therefore has no prospect of success.  What was stated in the Notice of Motion and the written submission bears no relevance to our reasons for refusing leave to appeal out of time against the Judge’s decision.   

9.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision. 

10.  As the condition for giving leave to appeal is not met, the Notice of Motion is dismissed.