RE MUHAMMAD ARFAN

CAMP 136/2021

[2022] HKCA 182

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 136 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 795 OF 2018)

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J U D G M E N T

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

1.  On 3 December 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Chu and Au JJA)  judgment of 22 November 2021 (“the Judgment”)  ([2021] HKCA 1730). In the Judgment, we dismissed the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan dated 3 September 2020 refusing to grant to the applicant leave to apply for judicial review ([2020] HKCFI 2227).

2.  The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”)  provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.  In his Notice of Motion, the applicant stated:

“1. The learned Judges were wrong as a matter of Law for not having applied the principle of procedural unfairness to the decision of the director whereby the director was required to give reasons justifying the decision.

2. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

3. There was some error in law in my decision. The decision maker just relied on COL information any my previous facts, which were favor on rejecting my claim.

4. Actual life occur different situation then mentioned COL information. Officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

5. The Judge did not apply the law properly & Procedural unfairness.

6. I further want to explain that my life is in danger in my country. I would be killed or harmed if I return back to my country.” (sic)

5.  The applicant lodged his written submissions on 15 December 2021.  In those submissions, the applicant cited Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  acted in a procedurally unfair manner without properly assessing his credibility.  He also referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.  More importantly, none of his submissions identified any error in the Judgment.

6.  In our view, the applicant’s application is devoid of merits.  All the matters raised in his Notice of Motion and written submissions are general and bare allegations without any specific particulars or explanation.  The applicant also failed to identify any specific error in the Judgment with particulars.  Clearly, they are not proper grounds of appeal. Even taking the applicant’s submissions at their highest, his contentions are still fact-specific and do not relate to any question of great general or public importance.

7.  Furthermore, his written submissions lodged on 15 December 2021 were also essentially the same as those submissions previously lodged by the applicant on 17 June 2021.  Those submissions had already been considered and rejected by us at [13] and [17] of the Judgment and the applicant failed to identify any error in the Judgment.

8.  Accordingly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b)  of the HKCFAO.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b)  of the HKCFAO.

9.  For these reasons, the Notice of Motion filed on 3 December 2021 is dismissed.