Re Kayani Muhammad Saleem

CACV 117/2018

[2018] HKCA 903

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117OF 2018

(ON APPEAL FROM HCAL 867/2017)

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Before: Hon Lam VP, Yuen and McWalters JJA in Court

Date of Written Submissions: 27 August 2018

Date of Judgment: 30 November 2018

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.On 30 July 2018, this Court (Lam VP and McWalters JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 20 April 2018.

2.The applicant issued a notice of motion dated 13 August 2018 seeking leave to appeal to the Court of Final Appeal.  In the notice of motion, the applicant contended that this Court erred in failing to take account of the current political situation in Pakistan.  The applicant also attached to the notice of motion a 2-page document, apparently written in Urdu, without any English translation. 

3.The applicant lodged his written submissions in support of this application on 27 August 2018.  The applicant submitted that he was still targeted by the members of Pakistan People’s Party, that Pakistan was fraught with human rights issues and that because of the Muslim culture he would likely be tracked down by his enemies upon return.  The applicant reiterated that his life would be in danger if he returned to Pakistan.

4.First of all, the applicant offered no explanation as to why the 2-page document attached to the notice of motion was not produced at an earlier stage. An application for leave to appeal to the Court of Final Appeal is not an occasion for fresh evidence to be adduced, particularly when there had been ample opportunity for such evidence to be produced at the earlier tiers of the decision-making process. We note from paragraphs 12 and 41 of the Director’s first decision that the applicant had already alluded to the production of police reports and the Director had given him more than reasonable time to do so. 

5.The applicant also had no explanation as to the non-production of the document before the deputy judge in his application for leave to apply for judicial review or to this Court on appeal. 

6.It is quite plain that the applicant cannot satisfy the test in Ladd v Marshall [1954] 1 WLR 1489.  Judicial review is not the proper channel for running a new case: see Re Shrestha Santosh Kumar [2018] HKCA 583 at [17].  It is against the spirit of Section 37ZO of the Immigration Ordinance if the Court were to entertain a new claim in a judicial review when the conditions in Section 37ZO(2) are not met.

7.For these reasons, we would not admit the document as evidence.

8.Having considered the Notice of Motion and the submissions of the applicant, we cannot discern any question of great general or public importance that would justify leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  Nor is there any reason for granting leave on the “otherwise” limb.

9.Accordingly, the notice of motion date 13 August 2018 is dismissed.

The applicant acting in person