Re Asif Mehmood

CACV 380/2019

[2020] HKCA 81

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 380 OF 2019

(ON APPEAL FROM HCAL NO. 305 of 2018)

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JUDGMENT

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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 Josiah Lam (“the Judge”) given on 9 August 2019 refusing him leave to apply for judicial review.

2.On 20 December 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also lodged a written submission on 31 December 2019 in support of the application.

3.Having considered the applicant’s notice of motion, affirmation and written submission, 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 the materials before us.

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 two grounds of appeal as follows:

(1)  The judges were wrong as a matter of law in not having applied the principle of irrationality to the Judge’s decision[2] refusing the application for judicial review.

(2)  The judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director whereby the Director was required to give reasons justifying the decision.    

6.The affirmation only exhibited the judgment of this Court and the sealed order.  The written submission was similar to the one put forward at the appeal.  It quoted passages from cases on the high standard of fairness and the doctrine of Wednesbury unreasonableness, and submitted that the Board acted in a procedurally unfair manner in dealing with the applicant’s application and did not properly assess his credibility. It also made reference to section 37ZT of the Immigration Ordinance, Cap. 115.

7.We are of the view that the matters stated in the notice of motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  The two proposed grounds of appeal contained in the notice of motion relate only to the applicant’s case.  As for the written submission, it only sets out general legal principles without showing how they relate to the intended appeal.  The assertion of procedural unfairness was unspecific and lacked particulars. 

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.