RE JAVED ZAKIR

CACV 191/2019

[2019] HKCA 1326

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 191 OF 2019

(ON APPEAL FROM HCAL NO. 189 of 2018)

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JUDGMENT

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

1.  On 21 October 2019, this Court (Chu JA and Wong J) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 12 April 2019 refusing him leave to apply for judicial review.

2.  On 29 October 2019, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application.

3.  Having considered the applicant’s notice of motion 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 and written submission.

4.  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.

5.  The notice of motion stated that: (i) there is some error of law in the decision, and the decision maker relied on country of origin information (“COI”) and facts that favoured the rejection of the applicant’s claim when the real situation was different; (ii) the officer and the courts ignored the overwhelming evidence of violence towards minorities; (iii) the Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration; and (iv) the Judge did not apply the law correctly.  

6.  The written submission was the same as the one put forward in support of the applicant’s appeal to this Court. It cited ST v Director of Immigration [sic][2] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required because the applicant’s life is in danger and the decision has the effect of finally disposing of his claim.  It also referred to authorities on the Wednesbury unreasonableness principle and contended that the Board acted in a procedurally unfair manner.  It further referred to section 37ZT of the Immigration Ordinance, Cap. 115 and argued that, in cases of late filing of notice of appeal, the Board may only take account of (a) the statement of reasons in the application for late filing of the notice of appeal and any accompanying documentary evidence; and (b) any other relevant matters of fact within the Board’s knowledge.

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

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  What is stated in the notice of motion and written submission relates only to the circumstances of the applicant’s case.  Secondly, the first and second grounds set out in the notice of motion raised new arguments that had not been argued before the Judge or before us in the appeal. It is not open to the applicant to raise them for the first time in this application for leave to appeal to the Court of Final Appeal.  In respect of the third ground in the notice of motion and the written submission, as we pointed out in [13] of our judgment, it is unarguable.  As for the fourth ground in the notice of motion, it only contained vague bare assertion.    

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

10.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the notice of motion.