RE ALAM MOHAMMAD NOORE

CACV 383/2018

[2019] HKCA 365

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 383 OF 2018

(ON APPEAL FROM HCAL 726/2017)

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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 20 December 2018, this court (Barma JA and Yau J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 9 August 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 7 January 2019, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant repeated the grounds for applying for judicial review and the grounds advanced in a “supplemental notice of appeal” (the supplemental notice of appeal was never filed with this court and was supposedly dated 23 March 2018, several months prior to the Notice of Appeal itself).  He elaborated on those grounds and explained why it is unsafe for him to return.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 21 January 2019.  In his written submission, the applicant simply 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 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 his Notice of Motion and his written submission.  

7.  We note that all the grounds relied on by the applicant in the Notice of Motion and submissions had never been raised 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 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]

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

9.  For these reasons, the Notice of Motion dated 7 January 2019 is dismissed.