|
CACV 49/2020
[2020] HKCA 853
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 49 OF 2020
(ON APPEAL FROM HCAL NO. 2434 of 2018)
________________________
| RE |
MD NASIM AKHTAR |
Applicant |
________________________
Before: Hon Cheung, Chu and Barma JJA in Court
Date of Judgment: 27 October 2020
________________________
J U D G M E N T
________________________
Hon Chu JA giving the Judgment of the Court:
1. On 14 August 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 20 January 2020 refusing him leave to apply for judicial review.
2. On 4 September 2020, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal. He has also put in a written submission to support his application.
3. Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing. We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.
4. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that leave to appeal to the Court of Final Appeal may be granted 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.
5. The notice of motion stated the following points:
(1) There is some error in law in the decision.
(2) Decision maker just relied on country of origin information and facts which were in favour of rejecting the applicant’s claim, when life in real situation is different.
(3) The officer and courts prefer to ignore the overwhelming evidence of violence towards minorities.
(4) The decision displayed a biased and formulaic approach. It did not fairly assess the danger to the applicant’s life and was clearly unreasonable.
6. The written submission set out passages from authorities relating to the high standard of fairness and the Wednesbury unreasonableness principle. It argued that high standard of fairness should apply because the applicant’s life is in jeopardy, and the decision has the effect of finally disposing of his claim rendering him liable to be removed from Hong Kong. It also argued that the discretionary decision of an administrative body is liable to be set aside as being Wednesbury unreasonable. It further complained that the Torture Claims Appeal Board acted in a procedurally unfair manner and did not properly assess the credibility of the applicant. The written submission also referred to section 37ZT of the Immigration Ordinance, Cap. 115 that deals with late filing of appeal in an appeal to the Board against the Director of Immigration’s decision.
7. We are of the view that the points made in the notice of motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. They relate only to the circumstances of the applicant, and do not involve any question of great general or public importance, as required by section 22(1)(b). Further, the complaint about the use of country of origin information and procedural unfairness are new points that had not been argued in the appeal. It is not permissible to raise new arguments in an application for leave to appeal. These complaints are, in any event, not supported by particulars. As to the other points made in the notice of motion, they are also general assertions with no supporting particulars. It has further not been shown in what way the legal propositions made in the written submission relate to the applicant’s case.
8. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).
9. As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.
| (Peter Cheung) |
(Carlye Chu) |
(Aarif Barma) |
| Justice of Appeal |
Justice of Appeal |
Justice of Appeal |
The applicant, unrepresented, acted in person.
|