RE MOHAMMED WASEEM

CAMP 123/2023, [2024] HKCA 622

On Appeal From [2024] HKCA 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 123 OF 2023

(ON AN INTENDED APPEAL FROM HCAL NO 2788 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 6 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 24 April 2024 (“the Judgment”)  ([2024] HKCA 339).  In the Judgment, we dismissed the applicant’s reapplication for extension of time to appeal against the decision of Deputy High Court Judge To (“the Judge”)  dated 1 September 2022, by which the Judge refused to grant him extension of time and dismissed his application for leave to apply for judicial review ([2022] HKCFI 2689).

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 am the applicant herein. In the order give to the court There some error in my decision Decision maker just relied on COI information and my previous facts which were favour on reject my claims. Actual life occurs different situation the mentioned COI information Immigration Officer and Hong Kong High Court’s prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silverlining. The decision is betray bias and formula approach unlikely fairly access the danger of my life and calculate to reject my claims Also I am requested to court I don’t have legal represent could you please provide me and consider my real situation and safe my life’s as a human being Bundle of thanks.” (sic)

5.  Pursuant to Practice Direction 2.1, the applicant lodged his written submissions on 17 May 2024.  In those submissions, he reiterated that his life would be under threat if refouled and that the Adjudicator failed to make sufficient inquiry before finalising his decision without any reason.  He also asserted that he would be safe in Hong Kong.  In addition, he cited various case authorities on asylum and stated that there was a problem for domestic violence survivors.  He also cited case authorities relating to Wednesbury unreasonableness, failure to call for and consider medical and psychological reports and the lack of legal representation but failed to explain how they are relevant to his case.  He then raised challenges against the Board’s Decision on grounds of error of law, procedural impropriety and unfairness, irrationality and that the Board erred in putting weight on outdated COI as well as failing to obtain further COI research materials.  Those are however all vague and general grounds with no specific particulars as to how each applies to his case.

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.  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 mere regurgitations of submissions he had previously made before this court in his appeal, which we had already considered and rejected: see [11] - [20] of the Judgment.  More importantly, he has not identified any specific error in the Judgment.  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.

7.  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.

8.  Accordingly, the applicant fails to identify any question of great general or public importance in the intended appeal, 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 applicant’s intended appeal has no merit.  Accordingly, the Notice of Motion is dismissed.