RE EHSAAN MUHAMMAD

CAMP 228/2020

[2021] HKCA 1330

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 228 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO. 765 of 2017)

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J U D G M E N T

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

1.  On 23 July 2021, this Court (Yeung VP and Chu JA)  handed down our judgment[1] refusing to extend the time for the applicant to appeal the decision of Campbell-Moffat J given on 2 July 2020 refusing him leave to apply for judicial review.   

2.  On 6 August 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also put in a written submission on 18 August 2021 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.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, 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.

6.  The notice of motion set out the following grounds in support of the application:

(1)  The judges were wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director of Immigration (“the Director”)  made on 1 August 2016 and 22 May 2017.

(2)  The judges were wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the Director whereby the Director was required to give reasons justifying the decisions.

7.  The written submission is the same as the one put forward in support of the application to this Court for extension of time to appeal (see our judgment at [13]).  It quoted extensively from [43] to [45], and [51] of the judgment in Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also made reference to the Wednesbury unreasonableness principle and section 37ZT of the Immigration Ordinance, Cap. 115, which relates to late filing of notice of appeal to the Board.  It is said that the high standard of fairness should apply because the decision has the effect of finally disposed of the applicant’s claim.  It further complained that the Board acted in a procedurally unfair manner in dealing with the applicant’s appeal without properly assessing the applicant’s credibility.

8.  The matters put forward by the applicant in the notice of motion and the written submission do not constitute viable grounds for giving leave to appeal.  Importantly, they all relate to the circumstances of the applicant and his claim, and do not involve any question of great general or public importance that ought to be submitted to the Court of Final Appeal for determination.  The requirement for granting leave to appeal under section 22(1)(b)  of the Ordinance is therefore not met.  Moreover, the grounds stated in the notice of motion have no merits. Contrary to what was asserted, the Director had given written reasons for his decisions.  

9.  As to the written submission, the reference to section 37ZT of the Immigration Ordinance is entirely irrelevant, both because the applicant’s appeal to the Board was not late and the section has no relevance to court proceedings.  It is also not shown how the authorities and legal principles cited in the written submission relate to the intended appeal.   

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

11.  As the statutory requirements for granting leave to appeal to the Court of Final Appeal are not met, we refuse the application and dismiss the notice of motion.