Riaz Hussain and Another v. Permanent Secretary for Security

CAMP 235/2020

[2022] HKCA 575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 235 OF 2020

(ON AN INTENDED APPEAL FROM HCAL 62 OF 2020)

_______________

_______________

Before:  Hon Au and G Lam JJA in Court

Date of Written Submissions:  17 August 2021

Date of Judgment:  28 April 2022

________________

J U D G M E N T

________________

Hon Au JA (giving the Judgment of the Court):

1.On 30 July 2021, the 1^st applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Lam VP (as he then was) and Au JA) judgment of 16 July 2021 (“the Judgment”) ([2021] HKCA 1017). In the Judgment, we dismissed the 1^st applicant’s reapplication for extension of time to appeal against the decision of Chow J (as he then was) (“the Judge”) dated 6 October 2020, refusing the applicants’ application for leave to apply for judicial review (“the Leave Decision”) ([2020] HKCFI 2532).

2.The facts and issues in the appeal, as well as this Court’s reasons for dismissing it, are set out in the Judgment. We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 (“the HKCFAO”) provides that an appeal shall lie to the Court of Final Appeal at the discretion of this Court or the Court of Final Appeal 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.

4.In his Notice of Motion filed on 30 July 2021, the 1^st applicant stated:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Permanent Secretary for Security on 18-12-2019, refusing my application for Judicial Review.

2. The learned Judges were wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Secretary whereby the Secretary was required to give reasons justifying the decision.”

5.In his written submissions lodged on 17 August 2021, he complained that it was unfair to him and persons like him that the Permanent Secretary for Security (“the Secretary”) could deport anyone at any given time. He further complained that although his dependant visa was renewed by the Director of Immigration (“the Director”) after he was discharged from prison, the Director still applied to the Secretary for a deportation order to be made against him, which was unfair to him and his family. He further contended that the Judge was wrong in considering his delay of 20 days before applying for extension of time to appeal as substantial, since he was unrepresented at that time and did not have any proper legal assistance or advice. He then contended that the issuance of a deportation order against him did not serve any good to the public good and was disastrous to him and his family.

6.In our view, the matters set out in his Notice of Motion are all general and vague allegations. The 1^st applicant failed to condescend upon particulars as to how this Court had erred in the Judgment. They do not constitute proper grounds of appeal to the Court of Final Appeal.

7.Further, the complaints raised in his written submissions are a rerun of the arguments previously raised before this Court, which had already been fully considered and rejected at [7] [48] of the Judgment. It is well established that the Court of Appeal will not allow an application of this nature to be deployed as an occasion for re-running the arguments which had already been canvassed at the appeal: Ho Sin Ying v Chan Yui Ling & Another (unreported, CACV 221/2013, 14 November 2014) at [2] and [3]. As the applicant failed to identify with specific particulars any error in the Judgment or the Leave Decision, nothing set out in his written submissions can be construed as a viable ground of appeal to the Court of Final Appeal.

8.In any event, the 1^st applicant’s contentions are all fact-specific and do not relate to any question of great general or public importance.

9.Accordingly, the 1^st applicant has also failed to identify any question of great general or public importance, as required by section 22(1)(b) of the HKCFAO. We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b) of the HKCFAO.

10.For the above reasons, the application for leave to appeal to the Court of Final Appeal is refused and the Notice of Motion filed on 30 July 2021 is dismissed.

The 1^st applicant acting in person