RE QAISAR HUSSAIN SHAH

CACV 230/2021

[2021] HKCA 1874

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 230 OF 2021

(ON APPEAL FROM HCAL NO 2634 OF 2018)

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JUDGMENT

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

1.  This court (Yuen and Chow JJA) handed down judgment on 21 September 2021 ([2021] HKCA 1359) dismissing the applicant’s appeal against an order of DHCJ K.W. Lung (“the Judge”) given on 28 April 2021 refusing to grant leave to the applicant to apply for judicial review in respect of his non‑refoulement claim (“the Judge’s Decision”).

2.  On 10 May 2021, the applicant had filed a Notice of Appeal to appeal against the Judge’s Decision.  As mentioned earlier, in our judgment of 21 September 2021, we dismissed the applicant’s appeal.  The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3.  On 8 October 2021, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal on the following grounds:

“I would like to inform to Court of Final Appeal. There is some Error in law in my decision maker Just Relied on col information and my Previous Facts which were Faver on Reject my claim. Actual life occur different situation them mentioned col information. Officer and Court prefers to ignore the overwhelming of the evidence of the violence towards a bias and Formula approach unlikely fairly access the danger of my life and clearly calcute (sic) to Reject my claim.”

4.  In compliance with the directions made by the Registrar of Civil Appeals made on 8 October 2021 and Practice Direction 2.1, the applicant lodged his written submissions on 20 October 2021.  In his written submissions which were handwritten in English, in gist, he complained of the lack of legal assistance for his claim on BOR 2 risk, that to date the Board’s determination had not been interpreted to him, and that it amounted to procedural unfairness.

5.  The Registrar further directed that the Notice of Motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, we proceed to determine this application on paper. 

6.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

7.  The applicant failed to identify any error of law or raise any discernible ground to reverse our judgment in his Notice of Motion.  The ground of complaint regarding lack of legal assistance was new.  In any event, he was provided with Duty Lawyer Service at the stage when his non-refoulement claims on torture risk, BOR 2 risk, BOR 3 risk and persecution risk were assessed by the Director of Immigration.    

8.  Having regard to the judgment of this court, the applicant’s intended appeal has no merits.  No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.    

9.  Nor do we see any basis for the “or otherwise” limb under section 22(1)(b).

10.  By reason of the above, the Notice of Motion filed on 8 October 2021 is dismissed.