Re Mittal Sanjeev

CAMP 176/2018

[2019] HKCA 710

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 176 OF 2018

(ON AN INTENDED APPEAL FROM HCAL 832/2017)

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Before: Hon Chu, Barma JA and Au JJA in Court

Date of Judgment: 27 June 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 10 April 2019, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for an extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 14 September 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 application for an extension of time, 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 23 April 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform court there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favor on reject my claim. Actual life occur different situation then mentioned COI information officer and courts prefers to ignore the overwhelming of the evidence of the 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 calculate to reject my claims.”

4.In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 7 May 2019.  In the written submission, the applicant explained why it is unsafe for him to return.  He identified a number of alleged errors by the Director and the Board.  He also said that he is married to a permanent resident of Hong Kong and wanted the court to enquire of the Immigration Department why he was not given a dependent visa.

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 the Notice of Motion and written submission.

6.The matters stated by the applicant in the 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 the Notice of Motion and written submission.  

7.We note that in the intended appeal before us, the applicant did not raise any of the grounds identified in the Notice of Motion and submissions.  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]

8.Further, it is not the function of this court to make inquiries with the Director on behalf of the applicant.

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 23 April 2019 is dismissed.

The applicant acting in person