Re Murtaza Ali

CACV 151/2018

[2018] HKCA 856

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 151 OF 2018

(ON APPEAL FROM HCAL 886/2017)

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Before: Hon Chu JA, Barma JA and Poon JA in Court

Date of Handing Down Judgment: 30 November 2018

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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 22 August 2018, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 27 April 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 decisions 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 6 September 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

(1) the lack of legal representation for his claim based on BOR2 risk violated the high standard of fairness; and

(2) the Board had no jurisdiction to decide his claim based on BOR2 risk because the Director did not make a determination on his claim based on BOR2 risk.

4.In compliance with the directions of the court, the applicant lodged a written submission dated 19 September 2018 but received on 20 September 2018.  In his written submission, the applicant reiterated the same matters as were stated in the notice of motion.

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 do not constitute grounds for granting leave 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 in accordance with 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.  

7.In respect of the ground based on lack of legal assistance, this was sufficiently addressed in [16] of our judgment.  As for the ground based on the lack of jurisdiction of the Board to decide his claim under BOR2 risk, this ground had never been raised 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].

8.In our view, both grounds are plainly not reasonably arguable before the Court of Final Appeal.

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

10.For these reasons, the notice of motion dated 6 September 2018 is dismissed.

The applicant acting in person