Re Hussain Iftikhar

CACV 364/2019

[2020] HKCA 80

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 364 OF 2019

(ON APPEAL FROM HCAL NO. 1354 of 2018)

________________________

________________________

________________

JUDGMENT

________________

Hon Chu JA giving the Judgment of the Court:

1.On 11 December 2019, this Court (Chu JA and ST Poon J) handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 29 July 2019 refusing him leave to apply for judicial review.

2.On 17 December 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission on 31 December 2019.

3.The usual practice of this Court is to deal with applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing: see Practice Direction 2.1 at [3].  The applicant requested for an oral hearing in the notice of motion.  Having considered the applicant’s notice of motion and written submission, we see no good reason to depart from the usual practice, and have therefore proceeded to determine the applicant’s application on the basis of his notice of motion and written submission.

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 set out a number of arguments.  The intended grounds of appeal can be summarised as follows:

(1)  This Court erred in determining that the Judge had not failed to appreciate the significance of the applicant’s claim in that the lack of assistance to him is an error of law or procedure, or evidence of procedural unfairness or failure to adhere to a high standard of fairness. This is because non-refoulement claims are “life and limb” cases and should be assessed with caution, taking into account his vulnerability and disadvantage.

(2)  This Court had not considered the appeal thoroughly and had not addressed the issues in the applicant’s skeleton submission.

(3)  There was real procedural unfairness throughout the applicant’s case in that he did not have language and legal assistance.  Both the Form CALL-1 and the judgment of this Court had not been explained to the applicant by a qualified interpreter or translator.  He did not have a full understanding of them, and was deprived of the right to make a full appeal.  Without legal assistance, he could not elaborate on the errors of the Board.

6.The written submission primarily reiterated the arguments contained in the notice of motion, namely, the lack of language assistance and legal assistance resulted in procedural unfairness in the case.  It was also said that the fact that the applicant could find someone to assist him does not mean that the Court or the Board does not owe the applicant a duty of care.  It further stated that while he could have legal assistance during the screening stage, he was not able to attend the screening interview as he was sick, and that at the appeal before the Board, he did not have legal assistance.      

7.The matters stated in the notice of motion do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.

8.Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  All the arguments put forward in the notice of motion and written submission relate only to the circumstances of the applicant’s case.  Secondly, we had given reasons in [12] to [16] of our Judgment, the complaint about no oral hearing has no merit.    

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

10.For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the notice of motion.