RE BUKHARI WAQAS

CACV 266/2018

[2019] HKCA 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 266 OF 2018

(ON APPEAL FROM HCAL 688/2017)

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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 19 October 2018, this court (Yeung VP and Barma JA) handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J (“the judge”) on 15 June 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 decisions 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 30 October 2018, for leave to appeal to the Court of Final Appeal.  Although the notice of motion was headed as being in the Court of Appeal and was lodged with the Appeals Registry of the Court of Appeal, it sought a hearing before the Court of Final Appeal. As an application for leave to appeal to the Court of Final Appeal should, in this case, initially have been made to and heard by this Court, we treated it as a motion before the Court of Appeal.  The applicant stated in his notice of motion that he did not have an oral hearing for the leave application and his appeal to this court.  He also contended that there was a lack of legal representation for his claim based on BOR 2 risk.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 12 November 2018.  In his written submission, the applicant reiterated the matters raised in the notice of motion.

5.  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 his notice of motion and written submission.

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 and his written submission. 

7.  The applicant did not request a hearing in the Form 86, thus the leave application was dismissed without an oral hearing (RHC Order 53 r 3(3)). In the letter from the court to the applicant dated 2 August 2018, the applicant was reminded of the need to lodge skeletons for the hearing of his appeal.  In the letter from the court to the applicant dated 18 September 2018, the applicant was informed of the vacating of the hearing for the appeal because of his failure to lodge skeleton argument.  In our view, this ground is plainly not reasonably arguable before the Court of Final Appeal.

8.  As for the ground based on the lack of legal representation for his claim based on BOR 2 risk, as noted in [15] of our judgment this is not a ground raised in the Form 86.  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]

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

10.  For these reasons, the notice of motion dated 30 October 2018 is dismissed.