RE MOHAMED GANI

CACV 77/2022, [2024] HKCA 904

On Appeal From [2022] HKCA 1392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 77 OF 2022

(ON APPEAL FROM HCAL NO 262 OF 2019)

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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 30 September 2022, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung and Au JJA)  judgment of 23 September 2022 (“the Judgment”)  ([2022] HKCA 1392). In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge To (“the Deputy Judge”)  dated 4 February 2022, by which the Deputy Judge dismissed his application for leave to apply for judicial review ([2022] HKCFI 383).

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:

“I would like to inform to the Court of Final Appeal. There is some error in law my decision maker authorities. I am disagree with the decision made by the Director of Immigration, as well decision made by the Adjudicator of Torture Claim Appeal Board. There no such investigation in my claim just relied on old web information. I do not think my case determined fairly.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 12 October 2022.  In those submissions, the applicant complained of procedural unfairness in that he was not provided with legal and language assistance and also that decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office had not been translated to him via an interpreter.  He further complained without giving any specific particulars that the acts of the authorities had been discriminatory and unfair to him.

6.  In our view, there is no merit in his application.  The matters raised in his Notice of Motion and written submissions are all general and bare allegations without any specific particulars or explanation.  He has also failed to give any specific particulars as to any errors in the Judgment.  His allegations do not constitute proper grounds of appeal to the Court of Final Appeal.

7.  Further, his allegations in relation to the lack of legal and language assistance are all new and not raised before the Deputy Judge or in the Notice of Appeal.  It is not the practice of the Court of Appeal to entertain appeal on new points that were not canvassed in the hearing before it; 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 Final Appeal: see Re Orense Marian Masangkay [2022] HKCA 33 at [7] and Re Dandiwal Sandeep Singh [2021] HKCA 870 at [7].  High standards of fairness required by law 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 v Torture Claims Appeal Board & Another [2021] HKCA 279 at [3].  In any event, the applicant was legally represented and provided with interpretation services at the screening interview with the Immigration Department.  He was also provided with interpretation services during the oral hearing before the Board and that before the Deputy Judge.  There is plainly no substance in his complaints on lack of legal or language assistance to him.

8.  Even taking his case as its highest, the applicant’s allegations remain fact-specific and do not relate to any question of great general or public importance.

9.  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.

10.  For these reasons, the applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion filed on 30 September 2022 is dismissed.