RE SK ASGAR ALI

CACV 270/2018

[2019] HKCA 196

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 270 OF 2018

(ON APPEAL FROM HCAL 739/2017)

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J U D G M E N T

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

1.  On 31 October 2018, this court (Yuen and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 19 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 12 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that he will be killed upon his return to India.  He repeated the events giving rise to his non-refoulement claim.  He submitted that the Board and the Director of Immigration made a number of errors in their decisions but he did not identify any error in our judgment dated 31 October 2018.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 26 November 2018.  In his written submission, the applicant reiterated the matters raised in the Notice of Motion.  He further submitted that the Indian government is corrupt and that the Muslims in India face persecution.

5.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion and written submission.

6.  The matters stated by the applicant in his notice of motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion and his written submission.  The applicant failed to identify any error in our judgment dated 31 October 2018.  Further, the matters raised in the Notice of Motion and his submissions were not relied upon in the Notice of Appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally 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]

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

8.  For these reasons, the notice of motion dated 12 November 2018 is dismissed.