Re Sumon Mia

CACV 147/2018

[2019] HKCA 92

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 147 OF 2018

(ON APPEAL FROM HCAL 914/2017)

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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 23 August 2018, this court (Cheung, 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 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 25 October 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“1. The learned judges were wrong in ascertaining the issue of country of origin information. That’s procedural unfairness.

2. The Director did not give reasons justifying the decision.  He was required by law to do that.  The judges did not gave much weight to my argument.”

4.Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 26 October 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

5.Having considered the applicant’s notice of motion, 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.

6.The matters stated by the applicant in his notice of motion 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.  The first ground in the notice of motion lacks particulars.  As for the alleged failure by the director to give reasons, this is not a ground relied upon by the applicant 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 25 October 2018 is dismissed.

The applicant acting in person