ALI USMAN v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 70/2018

[2019] HKCA 412

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 70 OF 2018

(ON APPEAL FROM HCAL 682/2017)

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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 7 December 2018, this court (Lam VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 16 March 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decisions of the Director of Immigration.

2.  The facts and issues in the appeal, 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 applicant subsequently applied, by a Notice of Motion dated 12 December 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his Notice of Motion that:

“1. I disagree that the withdrawal I made was a valid one due to the unforeseen circumstances. It is therefore not a deliberate and informed decision.

2. I believe my case should be remitted to the Director for further consideration rather than being dismissed because I did write to the Department to request to have my case reopened and determined under all applicable grounds, including BOR2.  It therefore means that the Director of Immigration has made a judicial error.”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 27 December 2018.  In his written submission, the applicant reiterated the matters raised in the Notice of Motion.  The applicant complained of the inability of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office to re-open his case.  He also complained of the lack of response by the Director for his claim based on BOR 2 risk.  He submitted that he never received any written notice under s37ZG(5) of the Immigration Ordinance, Cap 115. 

5.  The Director filed submissions to oppose the application on 8 January 2019. 

6.  Having considered the applicant’s Notice of Motion and written submission and the submissions by the Director, 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 applicant’s application on the basis of his Notice of Motion and written submission.

7.  The matters stated by the applicant in his Notice of Motion and written submission 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 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 he has raised in his Notice of Motion and his written submission.  

8.  In relation to the issue of re-opening his claims, we have dealt with the same at [23] – [27].  As for the claim based on BOR 2 risk, we have held at [32] that the appropriate way forward is for the applicant to make a claim to the Director based on BOR 2 risk.

9.  We note that, hitherto, the applicant has not raised any complaint of the lack of a written notice under s37ZG(5) of the Immigration Ordinance, Cap 115.  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]

10.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

11.  For these reasons, the Notice of Motion dated 12 December 2018 is dismissed.