RE ADEEL MUHAMMAD

CACV 71/2022, [2023] HKCA 948

On Appeal From [2022] HKCA 1389

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 71 OF 2022

(ON APPEAL FROM HCAL NO 2096 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 26 September 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 23 September 2022 (“the Judgment”)  ([2022] HKCA 1389). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 28 January 2022, refusing to grant the applicant extension of time and dismissing his application for leave to apply for judicial review ([2022] HKCFI 323).

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 only stated:

“DIRECTOR OF IMMIGRATION AND TORTURE CLAIMS APPEAL BOARD DISMISSED MY NON REFOULEMENT CLAIM, I WAS NOT SATISFAID SO I CAME TO THE HIGH COURT FOR LEAVE TO APPEAL FOR JUDICIAL REVIEW. THE HIGH COURT AND THE COURT OF APPEAL DISMISSED MY APPLY. I WANT TO GO TO THE COURT OF FINAL APPEAL.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 10 October 2022.  In those submissions, he repeated the factual background and procedural history of his non-refoulement claim and asserted that the Board and the Director made many mistakes in the proceedings without specifying what those alleged mistakes were.  He also claimed that he wanted to go to the Court of Final Appeal for all his asylum seeker friends as they are facing the same problem.  He then asserted that since his arrival in Hong Kong, he stayed in Kam Tin and caused no problem to anyone but he was caught in a working area and the police thought he was working and so the Court gave him the punishment.  He also asserted that he married a Hong Kong woman and had two children who are attending school, and that he had applied for a dependant visa but the Immigration Department caused him to wait for a long time.  He further claimed that from the first day to the present he “has no other spot”.  In support, he also attached various documents including his marriage certificate, the birth certificates of his two children, identification documents of his two children, personal particulars report issued by Karlam Anglo-Chinese Kindergarten attended by his elder son, and a letter issued by the Castle Peak Hospital in relation to his wife suffering from adjustment disorder and anxiety symptoms (“the New Documents”).

6.  In our view, his intended appeal is clearly without substance.  At the outset, the allegations made in his Notice of Motion and written submissions are all bare and vague allegations unsupported by any evidence.  More importantly, he did not identify any specific error in the Judgment with sufficient particulars.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  It is also unclear how his asylum friends’ cases as claimed had any relevance to his case.  Accordingly, the applicant’s intended appeal plainly has no merit.

7.  Insofar as his assertions in relation to his family and dependent visa application are concerned, those matters and the New Documents have no relevance to his non-refoulement claim.  Further, those matters (together with the New Documents)  are only raised for the first time in the present application and not argued at first instance or on appeal.  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; nor generally is it the practice of the Court to grant leave on new fact-sensitive points not argued in the Court of Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  In any event, the applicant failed to demonstrate how the New Documents could satisfy the rules in relation to admission of fresh evidence on appeal as set out in Ladd v Marshall [1954] 1 WLR 1489 at p.1491[1], and how those documents have any relevance to his present case.  Accordingly, we refuse to entertain those new submissions and the New Documents in the present application.

8.  Further, even taking his case at its highest, his allegations are fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant 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 the above reasons, the Notice of Motion is dismissed.