RE SHAIKH SHAMIM

CACV 373/2019

[2020] HKCA 689

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 373 OF 2019

(ON APPEAL FROM HCAL NO. 559 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 18 December 2019, this Court (Chu and Barma JJA) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 August 2019 refusing to grant him leave to apply for judicial review.

2.  On 13 July 2020, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  Despite the directions of the Registrar for Civil Appals given on 15 July 2020, the applicant did not lodge his written submission by 27 July 2020, which is the time prescribed in the directions.  Instead, he only lodged his submission on 4 August 2020.

3.  Having considered the applicant’s notice of motion, affirmation 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 his notice of motion.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is late by six months, which is serious delay.  In his supporting affirmation, the applicant stated that, as a lay man, he was not aware of the procedural requirement.  There was no elaboration on, for instance, what steps he had taken to find out the procedure and time limit for appealing to the Court of Final Appeal.  We do not consider the applicant has provided satisfactory explanation or good reason for his serious delay.

7.  As to the merits of his intended appeal, section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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.

8.  The notice of motion set out three grounds of appeal:

(1)  The Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration in refusing the application for judicial review.

(2)  The Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director, whereby the Director and the Adjudicator were required to give reasons justifying the decisions.

(3)  The applicant will face hardship if he returns to India, and the Torture Claims Appeal Board had significantly relied on source of news which was not officially recognized or was simply hearsay. 

9.  The written submission is identical to the written submission lodged on 9 December 2019 in support of the appeal against the judge’s refusal to grant leave to apply for judicial review.  It referred to several authorities on high standard of fairness and the principle of Wednesbury unreasonableness, and argued that the high standard of fairness applied because of the importance of the decision to the applicant. It also complained that the Board acted in a procedurally unfair manner in assessing his credibility.  

10.  The matters put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

11.  First, they all relate to the applicant’s personal circumstances and his claim, and do not involve any question of great general or public importance.  Second, for the reasons we gave at paragraphs 13 to 15 of our judgment, the complaints of irrationality and procedural unfairness and the arguments in the written submission are unarguable.  Third, the complaint that the Board relied on outdated or hearsay information was not raised as a ground for judicial review before the Judge or in the appeal before 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 appeal before it.[2] Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]  This is particularly the case when the new complaint was a general assertion without particulars.        

12.  The circumstances of this case also do not provide any basis to grant leave on the “otherwise” limb under section 22(1)(b). 

13.  In conclusion, the statutory requirements for giving leave to appeal is not met.

14.  Having regard to the absence of good cause for the serious delay, and the lack of merits of the intended appeal, there is no basis for us to extend the time for the filing of the notice of motion.  Accordingly, we dismiss the notice of motion.