RE AQEEL ABBAS

CAMP 56/2018

[2019] HKCA 651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 56 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 673/2017)

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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 13 June 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for an extension of time to appeal against the decision of Campbell-Moffat J (“the judge”) on 17 April 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 application for extension of time 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 28 January 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“1. Impropriety of decision.

2.   Judge did not give weight to my arguments.  The Director of Immigration provided tainted documents which only supported his case.  He was under duty to consider my case properly.”

4.  Although the Notice of Motion was lodged well out of time, in his affirmation dated 28 January 2019, the applicant explained that he was arrested (and later sentenced to imprisonment) on 20 June 2018.  He was therefore unaware of the Order dated 13 June 2018 until much later.

5.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 8 February 2019.  In the written submission, the applicant submitted that the judge should have held that the lack of legal aid and language assistance constituted procedural improprieties.  Further, the judge should have held that the Board erred in their analysis of the Country of Origin information.

6.  Having considered the applicant’s Notice of Motion and written submission, 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 and written submission.

7.  We are prepared to accept the explanation by the applicant for the delay in filing the Notice of Motion.

8.  We now consider the merits of the application.  The matters stated by the applicant in the Notice of Motion and written submission 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 and written submission.  

9.  We note that, hitherto, the applicant has not raised any of the arguments in the Notice of Motion and written submission before this court.   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 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]

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

11.  For these reasons, the Notice of Motion dated 28 January 2019 is dismissed.