RE KHAN RASHID

CACV 366/2019

[2020] HKCA 420

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 366 OF 2019

(ON APPEAL FROM HCAL NO. 131 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  By a judgment dated 9 December 2019 ([2019] HKCA 1378) (“the Judgment”), this court (Hon Cheung and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL-1 dated 26 July 2019 ([2019] HKCFI 1009), refusing leave to apply for judicial review. 

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 16 January 2018 refusing the appeal against the decision of the Director of Immigration (“the Director”) dated 9 June 2017 rejecting the applicant’s non-refoulement claim. 

3.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.

4.  By a Notice of Motion dated 11 December 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

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.  In the Notice of Motion, the applicant set out the following grounds:

“I am not satisfied with the decision because this will leade to my life towards more danger. I cant go back to my country at this moment because my life is not save in my home land in Pakistan. I would like to inform court of final appeal there is some error in law in my decision maker just relied on col information and my previous facts which one favor on reject my claim.” [sic]

7.  In compliance with the directions given by Master Au-Yeung on 12 December 2019, the applicant lodged his written submissions on 23 December 2019.  In the handwritten written submissions, he argued that he lacked legal representation in his BOR2 risk assessment before the Director and that he did not have an oral hearing before the Deputy Judge or this court.  He also argued that he did not have sufficient language assistance.

8.  We have duly considered the applicant’s Notice of Motion and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

9.  In our view, this application is devoid of merits.

10.  First, nowhere in the Notice of Motion or written submissions has the applicant identified any errors in the Judgment.

11.  Second, the grounds of appeal and arguments raised in the applicant’s written submissions were not argued before the Deputy Judge or this court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it[1].  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not previously argued in the Court of Appeal[2].

12.  Third, as to his complaint of not having an oral hearing, the applicant did not request an oral hearing before the Deputy Judge and we had dealt with his abandonment of oral hearing at paragraphs 2-4 of the Judgment.  This complaint has no basis.  

13.  In other words, none of the grounds raised by the applicant are viable grounds of the appeal. 

14.  In any event, the applicant failed to identify in the Notice of Motion or the written submissions any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.

15.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are therefore not met.  Accordingly, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal and dismiss his Notice of Motion.