Syed Sajjad Ahmed Alias Sajjad Gilani v. Security Bureau

CACV 347/2018

[2020] HKCA 202

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 347 OF 2018

(ON APPEAL FROM HCAL 260/2018)

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BETWEEN

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Before:  Hon Cheung JA, Chu JA and Barma JA in Court

Date of Judgment:  16 April 2020

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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 21 May 2019, this court (Cheung and Barma JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Chow J (“the judge”) on 16 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Permanent Secretary for Security (“Secretary”) refusing the applicant’s request for rescission or suspension of the deportation order against him dated 30 November 1998.

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 14 June 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The following ground of appeal were raised as within my application 27 July 2018 to appeal to the Court of Appeal.

There was a failure to consider this key point that the right of my family of great importance about my child as provided the status.  The Court of First Instance without trial failed to apply the necessary scrutiny in relation to that key point about my child as provided that status.”

4.The applicant lodged a written submission in support of the application on 27 June 2019.  In the written submission, the applicant submitted that the issue concerning the standard and approach in evaluating his family circumstances was of significant public importance.  He claimed that he had a good excuse for breaching the deportation order and that this court failed to consider his appeal thoroughly.

5.The Secretary lodged a written submission on 8 August 2019.  The Secretary submitted that the applicant had failed to identify any question of great general or public importance.  Further, the applicable principles have already been decided in other cases, including Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10.

6.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.

7.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.  

8.We have held at [18] of our judgment that the applicant failed to provide any ground for judicial review before the judge and that there was no good reason to allow the applicant to advance new grounds in the appeal (including the one based on family circumstances).

9.We have also held that the ground based on family circumstances should be dismissed in any event following Comilang, Lau Kong Yung (1999) 2 HKCFAR 300 and BI v Director of Immigration [2016] 2 HKLRD 520 ([20] – [25] of our judgment). 

10.In our view, the intended appeal does not involve any question of great general or public importance and these grounds are not reasonably arguable before the Court of Final Appeal. 

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

12.For these reasons, the Notice of Motion dated 14 June 2019 is dismissed.  We make no order as to costs.

The applicant acting in person

Ms Patricia Lam, Government Counsel of the Department of Justice, for the putative respondent