RE HUSSAIN SADAM

CACV 120/2018

[2018] HKCA 698

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 120 OF 2018

(ON APPEAL FROM HCAL NO. 820 of 2017)

________________________

________________________

________________

JUDGMENT

________________

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

1.  On 14 August 2018, this Court handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 5 September 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

Despite the directions of the Registrar of Civil Appeals given on 11 September 2018, the applicant has not lodged any written submission by 21 September 2018.

3.  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.

4.  The Notice of Motion did not set out any proposed question for determination by the Court of Final Appeal.  It merely stated that the judgment was unfair and unreasonable, and the application had arguable chance and reasonable chance of success. 

5.  The applicant filed an affirmation on 7 September 2018, in which he put forward two questions said to involve great, general or public importance.  They are:

(1)   “whether lack of legal representation is a [reasonable] basis to challenge the fairness of the process” (“Question 1”); and 

(2)   “whether there ought to be an additional basis for advancing a case on the BOR 2 risk separate from the BOR 3 risk, torture risk and persecution [risk]” (“Question 2”).     

6.  In respect of Question 1, it is not part of the grounds of appeal advanced before this Court (see [13] of the Judgment), and does not arise from our judgment (see [15] to [17] of the Judgment).  As part of his grounds of appeal to this Court, the applicant stated that the Director’s determination on the BOR 2 risk was made when he did not have legal representation from the Duty Lawyer service.  We rejected this argument as being misplaced because the applicant was legally represented in the screening process and the interview with the immigration officer, pursuant to which the Director made his decision dated 31 May 2017 covering all the applicable grounds, namely, torture risk, persecution risk, BOR 3 risk and BOR 2 risk grounds. 

7.  Likewise, Question 2 also does not arise from our judgment.  The question does not form part of the grounds of appeal before this Court, and the applicant had advanced no argument on it. There is also no reference to this in the Judgment.       

8.  In the circumstances, the two questions are not proper questions for submission to the Court of Final Appeal for determination.  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.