RE AHMED SAMIR AND OTHERS

CAMP 94/2019

[2021] HKCA 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 94 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 919/2017)

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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 23 April 2020, this court (Barma JA and Au JA) handed down a judgment dismissing the applicants’ application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 25 January 2019 refusing leave to the applicants to apply for judicial review. The applicants had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing their appeal from the decision of the Director of Immigration rejecting their 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 applicants subsequently applied, by a Notice of Motion dated 12 May 2020, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicants explained why it is unsafe for them to return.  They identified a number of errors allegedly committed by the Board, many of which had already been advanced as grounds for judicial review in the Form 86.  They contended that the court ignored “the overwhelming…evidence of this violence towards minorities searching for unrealistic silver lining”.  They submitted that the lockdown in India due to the coronavirus has made it less desirable for them to return.  They claim that the matters involved in the appeal are of significant public importance, particularly with regard to the standard and approach in the assessment of evidence and credibility with non-refoulement claims.  They further contended that:

“The Court of First Instance failed to discharge its duty to comprehensively consider the lawfulness or fairness of decision-making, as is its role in judicial review.

Each of the points listed above addresses Peter consideration in the objective assessment of risk to prevent refoulement to a risk state. The matters are of significance as they pertain to the life and freedom of individuals within Hong Kong.

There are fundamental errors going to the heart of the appropriate determination of protection claims in Hong Kong, it is therefore of public importance such as to justify the consideration of the Court of Appeal”

4.  The applicants lodged a written submission in support of the application on 12 June 2020.  In the written submission, the applicants repeated the matters raised in the Notice of Motion. 

5.  Having considered the applicants’ 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 applicants’ application on the basis of the documents filed.

6.  The matters stated by the applicants do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicants have 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 they have raised.  

7.  Most of the grounds raised in the Notice of Motion and the written submission are new grounds which have never been raised in the application for extension of time to 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.  In any events, all of the grounds raised in the Notice of Motion and the written submission are vague and lack particulars.  In our view, none of those grounds is 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 12 May 2020 is dismissed.