Case Document

100%Judiciary

CACV 204/2018

[2019] HKCA 293

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 204 OF 2018

(ON APPEAL FROM HCAL 856/2017)

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RE:

ASGHAR SAYEED

Applicant

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Before:

Hon Barma JA, McWalters JA and Anthony Chan J in Court

Date of Judgment:

19 March 2019

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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 30 October 2018, this court (Barma JA and Anthony Chan J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 25 May 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 8 November 2018, for leave to appeal to the Court of Final Appeal. The applicant stated in his Notice of Motion that:

“1. If my ground lack particulars, I should have been given an oral hearing to explain myself better in person as all documentations are just done by a friend and not by me first hand.

2. I could not have possibly shown why the Court should depart from Zahid Abbas when I don’t even know what that is. I have not read the full judgment. It is also unrealistic to expect me to have done so. Therefore I stand by what I said about Prabakar and FB being decided over 10 years.

3. I stand by my ground that I could not provide additional information because I did not have help. I did not represent my case ‘fully’ to the Director as I was never given the proper chance to submit BOR 2 claims.”

4.In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 22 November 2018. In his written submission, the applicant reiterated the matters raised in the Notice of Motion. He submitted that he is not fluent in the official languages and there is no organization that was willing to provide free service to him. He should therefore have been given the benefit of doubt.

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 and written submission.

6.The matters stated by the applicant in his Notice of Motion and written submission 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 and written submission. We have dealt with the issues regarding legal representation and the alleged inability to present his case on BOR 2 risk at [14] of our judgment. Further, the applicant had been given an opportunity to make submissions before this court at the hearing on 23 October 2018. We are of the view that none of the matters relied on by the applicant is reasonably arguable before the Court of Final Appeal.

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 8 November 2018 is dismissed.