RE SHARIFUL ISLAM

CACV 414/2018

[2019] HKCA 117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 414 OF 2018

(ON APPEAL FROM HCAL NO. 917 of 2017)

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JUDGMENT

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

1. On 21 November 2018, this Court handed down our judgment[1] (“the Judgment”) striking out the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 17 August 2018 on the ground that the appeal was not properly constituted.  The Judge had refused to grant leave to the applicant to apply for judicial review, which was brought out of time and was an abuse of process. 

2. By a Notice of Motion dated 28 November 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission in support of the application.

3. Having considered the applicant’s notice of motion, 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.

4. Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted 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 stated that: (i) the decision was unfounded and biased because the Judge relied heavily on country of origin information that did not reflect the true situation in the applicant’s country, (ii) theories on paper is different from actually living in danger; (iii) it would be a miscarriage of justice if the applicant were refouled; and (iv) this court had adopted a fixed formula towards all refugees.

6. The written submission cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed. 

7. What was stated in the Notice of Motion and the written submission does 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).  Further, the matters advanced have no relevance to the Judge’s reasons for refusing his application for leave to apply for judicial review, or to our reasons for striking out his appeal. 

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

9. For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.