RE CHAUDHARY MUHAMMAD MOBEEN

CAMP 73/2018

[2019] HKCA 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 73 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 737/2017)

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J U D G M E N T

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

1.  On 5 October 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 9 May 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 decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the 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 18 October 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1. Learned judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on the 5^th October 2018 refusing my application for Judicial Review.

2. The learned judges were wrong as a matter of law for not having applied the principle on procedural unfairness to the decision of the director whereby the director was required to give reasons justifying the decision.”

4.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 22 October 2018, 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 his notice of motion.

6.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave 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 his notice of motion.  The ground based on irrationality is vague and lacks particulars.  We are of the view that this ground is not reasonably arguable before the Court of Final Appeal.  As for the ground based on the alleged failure on the part of the Director of Immigration to give reasons, this ground was never raised in the notice of appeal. As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]

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

8.  For these reasons, the notice of motion dated 18 October 2018 is dismissed.