RE AKHTAR SHAIKH JAWED

CAMP 356/2021

[2021] HKCA 1859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 356 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO. 2657 OF 2018)

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J U D G M E N T

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

1.  On 19 October 2021, this court handed down judgment ([2021] HKCA 1522) dismissing the applicant’s application to extend time to appeal an order of Deputy High Court Judge To given on 2 June 2021 refusing his application for leave to apply for judicial review in respect of his non-refoulement claim.

2.  On 27 October 2021, the applicant filed a Notice of Motion applying for leave to appeal this court’s judgment to the Court of Final Appeal. The applicant has also lodged a written submission on 8 November 2021.

3.  Having considered the applicant’s Notice of Motion and written submission, 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 the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment. We will not repeat them.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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.

6.  The Notice of Motion set out the following grounds in support of the application:

(1) There is some error in the decision.

(2) The decision maker just relied on country of origin information (COI) and the facts that favour a dismissal of the applicant’s claim.

(3) The actual situation is different than what is mentioned in the COI. The immigration officer and the courts prefer to ignore the overwhelming evidence of the violence towards the minorities.

(4) The decision betrays a biased and formulaic approach, is unlikely a fair assessment of the danger to the applicant’s life and is clearly not reasonable.

7.  The written submission is substantially identical to the written submission lodged in support of the renewed application for extending the time to appeal (see [18] of our judgment). The only difference is a new paragraph 7 that quoted from another judgment on Wednesbury unreasonableness.

8.  We are of the view that the grounds and arguments put forward by the applicant do not constitute viable grounds for giving leave to appeal. Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the Ordinance.

9.  Further, for the reasons given by the Judge, with which we agree, the applicant’s complaints about procedural unfairness, irrationality and lack of proper consideration of the COI in the Board’s decision have no merits (see [9] of our judgment).

10.  As to the arguments in the written submission, as pointed out in [19] of our judgment, it has not been shown how the legal propositions relate to the applicant’s case.

11.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

12.  As the statutory requirements for giving leave to appeal are not met, we accordingly dismiss the Notice of Motion.