RE IQBAL MAZHAR alias MAZHAR IQBAL

CAMP 148/2022

[2023] HKCA 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1358 OF 2018)

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J U D G M E N T

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

1.  On 12 December 2022, the applicant filed a Notice of Motion with a supporting affirmation to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 2 December 2022 (“the Judgment”)  ([2022] HKCA 1762). In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”)  dated 16 July 2021, refusing his application for leave to apply for judicial review ([2021] HKCFI 2029).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

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

4.  In his Notice of Motion, the applicant stated:

“1. The learned Judge were wrong as a matter of law for not having applied the principle of irrational to the decision made by the Director of Immigration on dated 16 July 2021 refusing my application for Judicial review.

2. The learned Judge were wrong as a matter of law for not having applied the principle of irrational to the decision of the Director hereby the was required to give reason justifying the decision.” (sic)

5.  In his supporting affirmation, the applicant stated that he was legally unrepresented and had no means to seek any proper legal advice. He further alleged that a good ground of appeal was not necessarily considered at the stage of applying to the Court of Appeal and that the merits of this ground of appeal constituted sufficient justification for the Court to exercise its discretion in allowing his appeal.  However, no such ground of appeal was specified in his supporting affirmation.

6.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 29 December 2022.  In those submissions, he repeated the procedural history and factual basis of his non-refoulement claim.  He also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  had acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

7.  In our view, the applicant’s intended appeal has no merit at all.  The intended grounds as raised in his Notice of Motion, supporting affirmation and written submissions are all bare and vague allegations without specific particulars in support.  Furthermore, all of his arguments were directed at the Director and the Board and he failed to identify any error in the Judgment.  The matters raised in his written submissions are essentially a mere regurgitation of those submissions he had previously made before this Court: see [14] of the Judgment.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3].  His arguments had already been fully considered and rejected by this Court at [15] - [22] of the Judgment and the applicant failed to identify with specific particulars any error in the Judgment.  High standards of fairness also do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero[2021] HKCA 279 at [3].  As such, nothing set out in the Notice of Motion can be considered as viable grounds of appeal to the Court of Final Appeal.

8.  In any event, the applicant’s contentions are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, he has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

10.  For these reasons, the applicant’s intended appeal has no merit and does not meet the requirements of section 22(1)(b)  of the HKCFAO.  Accordingly, the Notice of Motion is dismissed.