Re Ahmed Jahangir

CACV 190/2020

[2020] HKCA 1035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 190 OF 2020

(ON AN APPEAL FROM HCAL NO. 1615 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.On 12 November 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 4 June 2020 refusing him leave to apply for judicial review.    

2.On 23 November 2020, 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.  He had also put in a written submission to support his 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 documents in the case.

4.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that 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 the following grounds of appeal:

(1)  The judges were wrong as a matter of law for not having applied the principle of irrationality to the Director’s decision in 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 Director’s decision whereby the Director was required to give reasons justifying the decision.

6.The applicant stated in his affirmation that there is a good ground of appeal that was not necessarily considered in the appeal, and he believes there are sufficient merits in the ground to justify the Court allowing the appeal.  This is, however, a general assertion with no elaboration of what the ground of appeal is. 

7.The written submission cited authorities on the principles of high standards of fairness and Wednesbury unreasonableness.  It argued that high standards of fairness are required since the life and limb of the applicant and his fundamental human right not to be subject to torture are involved and also because the decision has the effect of finally disposing of the applicant’s claim.  It also argued that the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance, Cap. 115 which concerned the Board’s considerations in dealing with the late filing of a notice of appeal.  

8.What has been forward by the applicant in the notice of motion, affirmation and written submission do not constitute proper grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, they do not involve any question of great general or public importance, as required by section 22(1)(b).  Further, the complaints about irrationality and procedural unfairness in the Director’s decision and the Board’s decision were never raised in the application for leave to apply for judicial review before the Judge or in the appeal to this Court.  It is not open to the applicant to put forward these new grounds in this application for leave to appeal to the Court of Final Appeal.  In any event, they are very general assertions with no particulars given.  Moreover, the reference to section 37ZT of the Immigration Ordinance in the written submission is irrelevant since the appeal to the Board was filed within time.

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

10.As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.

The applicant, unrepresented, acted in person.