NOWODZELSKI, STACEY ALAN v. DIRECTOR OF IMMIGRATION

CACV 187/2017

[2018] HKCA 548

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 187 OF 2017

(ON APPEAL FROM HCAL 73/2017)

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JUDGMENT

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Hon Chow J (giving the Judgment of the Court):-

1.  On 4 June 2018, this Court handed down its Judgment (“the Main Judgment”) dismissing the Applicant’s appeal against the order of Au J dated 15 August 2017, whereby the Judge dismissed the Applicant’s application for leave to apply for judicial review of (i) a removal order made by the Director of Immigration (“the Director”) against the Applicant dated 7 February 2017 (“the Removal Order”), and (ii) the decision of the Immigration Tribunal dated 2 March 2017 dismissing the Applicant’s appeal against the Removal Order (“the Decision”). On 3 July 2018, the Applicant issued a Notice of Motion seeking leave to appeal the Main Judgment to the Court of Final Appeal. This is the Court’s judgment on the Applicant’s application for leave to appeal to the Court of Final Appeal.

2.  The relevant criteria for granting leave to appeal to the Court of Final Appeal are set out in Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484:

“An appeal shall lie to the Court [of Final Appeal] at the discretion of the Court of Appeal or the Court [of Final Appeal], from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court [of Final Appeal], as the case may be, 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.”

3.  It is well established that an applicant seeking leave to appeal to the Court of Final Appeal is required to “identify and state in his notice of application the grounds of the application and, where one of the grounds relied upon is that a question of great general or public importance is involved in the appeal, that question must be identified in the notice” (see Safder Tehseen v Permanent Secretary for Security (2014) 17 HKCFAR 567, at [10] per Fok PJ).

4.  In the present case, the Notice of Motion consists of a total of 11 paragraphs, but fails to identify any question involved in the proposed appeal which may be said to be of great general or public importance which ought to be submitted to the Court of Final Appeal for decision.

5.  We shall, nevertheless, briefly deal with the matters or grounds set out in the Notice of Motion.

6.  In paragraphs 1 and 2 of the Notice of Motion, the Applicant reiterates his argument that he should not be removed from Hong Kong because he has no conviction of any kind for “breach of condition of stay”.  In support of this argument, the Applicant relies on the fact that his conviction for the offence of breach of condition of stay entered on 2 November 2016 was set aside by the magistrate upon review on 22 November 2016, and the Director of Immigration did not appeal against the latter decision of the magistrate.  This argument was dealt with in paragraphs 12 to 15 of the Main Judgment.

7.  In paragraphs 3 to 5 of the Notice of Motion, the Applicant repeats his argument that he has acquired the Hong Kong permanent resident status.  This argument was considered and rejected in paragraphs 17 to 22 of the Main Judgment.

8.  In paragraph 6 of the Notice of Motion, the Applicant relies on the fact that he is lawfully married to a permanent resident of the HKSAR and contends that he is entitled to remain in Hong Kong by virtue of Article 37 of the Basic Law.  This argument was considered and rejected in paragraph 28 of the Main Judgment.

9.  Paragraph 7 and 8 of the Notice of Motion do not raise any question of law, or ground of appeal.

10.  In paragraph 9 of the Notice of Motion, the Applicant refers to the Family Status Discrimination Ordinance, Cap 527, but fails to explain how it is relevant to his case.  As demonstrated by the court in paragraphs 26 and 27 of the Main Judgment, the Applicant’s reliance on that Ordinance is misconceived.

11.  In paragraph 10 of the Notice of Motion, the Applicant requests to be “naturalized” under Article 7 of the PRC Nationality Law.  As mentioned in paragraph 25 of the Main Judgment, it is for the Applicant to make the appropriate application if he considers that he meets the qualification for naturalization.  This matter has no bearing on the legality of the Removal Order or the Decision.

12.  Lastly, in paragraph 11 of the Notice of Motion, the Applicant repeats his argument that he holds no documentation of any citizenship under US law.  This argument was dealt with in paragraphs 23 and 24 of the Main Judgment.

13.  In all, we are of the view that the Applicant has failed to show that his proposed appeal involves any question of law of great general or public importance which ought to be submitted to the Court of Final Appeal for decision.  We also do not see any basis to grant leave to appeal on the “or otherwise” limb.

14.  For the foregoing reasons, the Notice of Motion is dismissed with costs to the Respondent.  We have examined the Statement of Costs submitted by the Department of Justice, and consider the amount of costs in the sum of HK$33,746.00 claimed by Respondent to be reasonable. Accordingly, we order the Applicant to pay the sum of HK$33,746.00 to the Respondent by way of costs.