RE HUSSAIN AMIR

CACV 297/2019

[2020] HKCA 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 297 OF 2019

(ON APPEAL FROM HCAL NO 433 OF 2018)

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J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

Introduction

1.  On 21 October 2019, the applicant filed a Notice of Motion seeking leave to appeal to the Court of Final Appeal from the judgment of the Court of Appeal (Zervos and Au JJA and Coleman J) of 11 October 2019 [2019] HKCA 1133, dismissing the applicant’s appeal against the refusal of leave to apply for judicial review.

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

“1.  The learned 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, refusing my application for Judicial Review.

2.  There is some error in my Decision. The Decision maker just relied on COL information, and my pervious facts which were in favour on rejecting my claim. Actual life occur different situation than mentioned in COL information, officers and courts prefers to ignore the overwheming of the evidence of the violence towards minorities searching for unrealistic silver lining.

3.  The Judge did not apply the law properly.” [sic]

3.  On 24 October 2019, the Registrar of Civil Appeals directed that, pursuant to Practice Direction 2.1, the applicant shall lodge with the Court his written submissions on or before 4 November 2019.

4.  On 1 November 2019, the applicant filed written ‘proforma’ submissions.  The applicant relies on ST v Director of Immigration, [2014] 4 HKLRD 277, and Secretary for Security v Saktheval Prabakar, [2005] 1 HKLRD 289, for the principle that a high standard of fairness is required in the determination of a torture claim.  He further stated, in summary, that (1) the adjudicator acted in a procedurally unfair manner; (2) the decision could be set aside if it is Wednesday unreasonable; and (3) the Board should consider the requirements under section 37ZT of the Immigration Ordinance (“IO”) for late filing of notice of appeal.

5.  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.

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

7.  As was explained to the applicant in the judgment of the Court of Appeal, the primary decision makers are the Director and the Board.  In non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, but the Court should nonetheless not usurp the role of the Board. Assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  The Court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

8.  As to the complaint based on section 37ZT of IO, this was not raised 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 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.

9.  The applicant has failed to raise any question of great general or public importance that warrants submission to the Court of Final Appeal for consideration.  The criteria provided for under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) have not been met.  Nor is there any reason for leave to be granted under the “or otherwise” limb.

10.  Accordingly, the application for leave to appeal to the Court of Final Appeal is dismissed.