RE MASIH MAIKAL

CAMP 174/2018

[2019] HKCA 1006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 174 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 757/2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

1.  On 10 April 2019, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for leave to appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 8 August 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the application for leave to 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 7 May 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1.  The judges have failed to consider my case fully before coming with a judgment.

2.  The Judges have failed to consider why the Duty Lawyer Service was not called upon to represent me for my BOR 2 risk.

3.  Whilst it is true that ‘representation at later stages is merits based’, the Director’s consideration of BOR 2 risk claim determined by the Director should not be considered a ‘later’ stage.  BOR 2 risk claim is a part of the assessment before the Director for a complete non-refoulement claim protection case, as a non-refoulement claim is to be considered under all four applicable grounds under the Unified Screening Mechanism.  As a result, BOR 2 should be given the same weight, importance, and procedural fairness as with the other three applicable grounds.  The determination of BOR 2 by the Director of Immigration without referring the case back to the immigration Department is fundamentally wrong in principle and should be corrected.  The Judge’s ignorance of the facts is an error in law.”

4.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 8 May 2019, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

5.  Having considered the applicant’s Notice of Motion, 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 the Notice of Motion.

6.  The matters stated by the applicant in the Notice of Motion 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 the Notice of Motion.  

7.  For Ground 1, the applicant failed to identify any aspect of his case which was not considered by this court.  For Ground 2, we have dealt with the issue of legal representation for his BOR 2 risk claim at [18] of our judgment.  Ground 3 is not supported by any recognized legal principle or authority.  In our view, none of these grounds is reasonably arguable before the Court of Final Appeal. 

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

9.  For these reasons, the Notice of Motion dated 7 May 2019 is dismissed.