RE MUHAMMAD ASHRAF

CACV 332/2020

[2021] HKCA 913

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 332 OF 2020

(ON APPEAL FROM HCAL NO. 2585 OF 2018)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  Leave to appeal to Court of Final Appeal

1.1  On 19 March 2021, this Court (Cheung JA, B Chu and ST Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge KW Lung given on 29 July 2020 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  The facts and issues of the appeal as well as the Court’s reasons for dismissing it are set out in our judgment.  We will not repeat them here.

1.3  The applicant now applies, by a notice of motion filed on 29 March 2021, for leave to appeal against our judgment to the Court of Final Appeal.  We consider it is appropriate to deal with the application on paper notwithstanding the applicant’s request for an oral hearing.

1.4  The applicant stated in his notice of motion that there was some error in his case but without specifically stating the alleged error.  The applicant stated that the decision maker relied on information which was not in his favour.  He stated that the decision was biased.  There are no particulars or specificity in these broad assertions.

1.5  Further, the notice of motion had five pages of attachment.  The applicant repeated the factual matters that have been dealt with before the Board and the Director.  One particular point he mentioned was that if he was refouled back to Pakistan, it was unsafe as the coronavirus pandemic situation there is now out of control.

1.6  The applicant lodged his written submissions on 22 April 2021.  The applicant again repeated factual matters that have been dealt with before the Board and the Director.  The written submissions are 10-page-long with two pages of exhibits.  The first exhibit shows his marriage certificate which appears to indicate that the applicant is now married with a Hong Kong permanent resident.  The second exhibit provides a copy of his resident’s Hong Kong permanent identity card. The submission contained some glaring mistakes including the applicant’s statement that he ‘would be ill-treated by my husband’s creditor...’ which was not the basis of his claim below.

2)  Legal principles

2.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion or written submissions. 

3.2  Whether it is the coronavirus pandemic in Pakistan, or that the applicant is now married to a Hong Kong resident with permanent residency, this Court has repeatedly emphasized that factual and evidential matters are within the province of the Board and the Director, who are also the primary decision makers: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

3.3  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

4)  Disposition

4.  For these reasons, the notice of motion dated 29 March 2021 is dismissed.