RE ASIF MUHAMMAD

CAMP 148/2023, [2024] HKCA 717

On Appeal From [2024] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 148 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2374 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 17 May 2024, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this court’s judgment of 2 May 2024 (“the Judgment”)  ([2024] HKCA 358).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the order of Deputy High Court Judge P Li (“the Judge”)  dated 10 September 2021, by which the Judge allowed the applicant to withdraw his application for leave to apply for judicial review.

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 irrationality to the decision made by the Director of Immigration refusing my application for Judicial Review.

2. There is some error in law in my decision. The decision maker just relied on COL information and my previous facts, which were favor on rejecting my claim.

3. Actual life occurs in different situations than COL information. Officers and courts prefer to ignore the overwhelming evidence of violence towards minorities, searching for unrealistic silver linings.

4. The Judge did not apply the law properly.” (sic)

5.  In his supporting affirmation dated 17 May 2024, the applicant stated that his was unrepresented and had no means to seek any proper legal advice.  He also vaguely stated that he understood there was a good ground of appeal that was not necessarily considered at the stage of his appeal and that the merits of this ground of appeal constitute sufficient reason for the court to allow the appeal. However, he did not specify what the purported ground of appeal was.

6.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 30 May 2024.  In those submissions, he generally cited various case authorities on the high standards of fairness and Wenesbury unreasonableness as well as section 37ZT of the Immigration Ordinance (Cap 115)  concerning the late filing of notice of appeal before the Board.  Those submissions are however all vague and general grounds with no specific particulars as to how each applies to his case.

7.  In our view, there is no merit in his application.  The matters raised in his Notice of Motion, supporting affirmation and written submissions are all general and bare allegations without any specific particulars or explanation.  General assertions of his fear if refouled do not constitute proper grounds of appeal: Re Saldua Dorothy Trifalgar [2022] HKCA 627 at [6].  In addition, his allegations are essentially a mere regurgitation of those submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [13] - [20] of the Judgment.  More importantly, he fails to identify any error in the Judgment with specific particulars.  It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014)  at [2] and [3]. Furthermore, high standards of fairness also do not entail free legal representation at all stages of the proceedings or interpretation service being made available at any time the applicant desires: Barroga Escolastica Tejero [2021] HKCA 279 at [3].  Clearly, his assertions do not constitute proper grounds of appeal and must fail.

8.  Further and in any event, even taking them at their highest, those allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  Accordingly, the applicant fails 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.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.