RE AHMAD SAEED

CACV 170/2018

[2018] HKCA 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 170 OF 2018

(ON APPEAL FROM HCAL NO. 618 of 2017)

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JUDGMENT

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

1.  On 29 August 2018, this Court handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the Judge”) given on 9 May 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 19 September 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

Despite the directions of the Registrar of Civil Appeals given on 20 September 2018, the applicant has not lodged any written submission by the time prescribed.

3.  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.

4.  The Notice of Motion raised the following grounds:

(1) As he could not read and write English, he had difficulty expressing himself or knowing what to do, and had to wait for an interpreter to come and explain to him.  That was why it was difficult for him to apply under the BOR 2 risk ground.

(2) Irrespective of whether his claim has merit under the BOR 2 risk ground, it is his legal right to have his claim thoroughly assessed, to be represented and to be able to fully express himself.

(3) He did not receive adequate assistance in different ways.  He had not language assistance and was uneducated and the support he received could not really help him to explain his case clearly.

(4) Asylum seekers were labelled as illegal immigrants and had to overstay in order to apply for non-refoulement protection.  Owing to this, they were discriminated against by the Board, contrary to the principle of UN(CAT) which should offer protection without bias.  The fact that assessment proceeded on the assumption that they were illegal immigrants and it was for them to argue against deportation is contrary to the humanitarian approach.

(5) He was further imperilled by the lack of adequate support.  He did not know he had to submit a skeleton argument, failing which he would not be allowed to attend the hearing because all was written in English.          

5.  Firstly, all the grounds set out in the Notice of Motion relate to the applicant’s personal circumstances.  They do not involve any question of great general or public importance. 

6.  Secondly, the complaint in Grounds (1) to (3) about lack of language assistance and legal representation generally and specifically with regard to the BOR 2 risk assessment had been put forward in support of the application for leave to apply for judicial review.  The Judge had given full consideration to them and gave detailed reasons for rejecting them in [10] of the Form CALL-1 dated 9 May 2018.  The applicant did not advance any ground of appeal against the Judge’s reasons.  We see no merit in these grounds.

7.  Thirdly, the complaint of discrimination and bias in Ground (4) is a new ground that was neither advanced before the Judge nor in the appeal before this Court.  It is not permissible to put forward new ground or argument in an application for leave to appeal.  In any event, this ground is no more than a bare assertion and is devoid of particulars.  There is no discernible merit.

8.  Fourthly, we had in [3] of the Judgment explained the rationale and importance of the requirement to lodge skeleton submission.  The direction to lodge skeleton argument and the warning of the consequences of default had twice been communicated to the applicant, including the notice of hearing.  We do not accept that the applicant was not made aware of the requirement and the consequences of non-compliance with the direction. Ground (5) is unarguable.

9.  For the above reasons, the proposed grounds of appeal do not satisfy the requirement under section 22(1)(b).  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.