RE RAHAMAN EMRAN

CACV 287/2019

[2019] HKCA 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2019

(ON APPEAL FROM HCAL NO. 636 of 2018)

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JUDGMENT

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

1.  On 30 September 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 18 June 2019 refusing him leave to apply for judicial review.

2.  On 2 October 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of his notice of motion and written submission.

4.  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.

5.  The Notice of Motion stated that: (i) there is some error of law in the decision; (ii) the decision maker relied on country of origin information (“COI”) and facts that favoured the rejection of his claim when the real situation was different; (iii) the officer and the courts ignored the overwhelming evidence of violence towards minorities; and (iv) the decision betrayed a biased and formulaic approach that did not fairly assess the danger to the applicant’s life and was clearly not reasonable.  

6.  The written submission cited ST v Director of Immigration [sic][2] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the applicant’s life is in danger and the decision has the effect of finally disposing of his claim.  It also referred to authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner.  It further referred to section 37ZT of the Immigration Ordinance, Cap. 115 and argued that, in cases of late filing of notice of appeal, the Board may only take account of (a) the statement of reasons in the application for late filing of the notice of appeal and any accompanying documentary evidence; and (b) any other relevant matters of fact within the Board’s knowledge.

7.  The matters stated in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  What is stated in the notice of motion and written submission relates only to the circumstances of the applicant’s case.  Secondly, for the reasons we gave in [12] of our Judgment, it is not open to the applicant to raise the complaint about the Board’s consideration of the COI, and the point is also unarguable.  Thirdly, it has not been demonstrated how the legal propositions and arguments in the written submission relate to the applicant’s claim.    

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

10.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the notice of motion.