Case Document

100%Judiciary

CACV 353/2018

[2019] HKCA 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 353 OF 2018

(ON APPEAL FROM HCAL NO. 953 of 2017)

______________________

Re

MD HASNAIN

Applicant

______________________

Before:

Hon Cheung, Chu and Barma JJA in Court

Date of Judgment:

4 March 2019

________________

JUDGMENT

________________

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

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

2.By a Notice of Motion dated 2 January 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. The applicant had also lodged a written submission in support of his application.

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

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:

“I would like to [inform] the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in COL Information. The Officer and [court] prefers to ignore the [overwhelming] of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is [betray] a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

6.The written submission cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted that high standards of fairness are required. 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 and argued that, in cases of late filing of notice of appeal, the Board may only take account of the (a) the statement of reasons stated 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.All 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. Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b). Secondly, we had in [11] to [13] of our Judgment pointed out that it is not the court’s function in judicial review and on appeal to assess the merits of the claim and the risks claimed by the applicant. The complaint against the Board’s evaluation of the country of origin information is therefore misplaced.

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

9.For the above reasons, the statutory requirements for giving leave to appeal is not met. Accordingly, we dismiss the Notice of Motion.