Case Document

100%Judiciary

CACV 313/2018

[2019] HKCA 665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 313 OF 2018

(ON APPEAL FROM HCAL NO. 1154 OF 2017)

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RE:

DEWAN ASLAM

Applicant

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Before: Hon Yeung Ag CJHC, Yuen and Pang JJA in Court

Date of Judgment: 12 July 2019

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

1.By a judgment dated 21 December 2018 ([2018] HKCA 818), the Court of Appeal (Yeung Ag CJHC, Yuen and Pang JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 9 July 2018 in HCAL 1154/2017 refusing to grant leave to him to apply for judicial review.

2.By a Notice of Motion dated 23 April 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.

3.In the Notice of Motion, the applicant set out the following grounds:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI Information and my previous facts which were in favour while rejecting my claim. Actual life occurs different situation then what is mentioned in COI information. The officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary (sic) a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.On 29 April 2019, Master Au-Yeung directed the applicant to lodge with court his written submissions on or before 7 May 2019. The Applicant failed to lodge his written submissions as directed.

5.We have duly considered the applicant’s Notice of Motion. Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

6.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. Here, the grounds and complaints put forward by the applicant in the Notice of Motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal. Further, the Judge had endorsed the Board’s findings that there were no substantial grounds for believing that the applicant had been subjected to torture or ill-treatment, or that, if he were refouled to Bangladesh, he would be in danger of being subjected to torture, persecution or ill-treatment or violation of his absolute and non-derogable rights. The applicant did not have reasonably arguable basis to challenge the Judge’s findings.

7.For the reasons that we gave in our judgment of 21 December 2018, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s order. None of the questions raised by the applicant in the Notice of Motion involve an arguable point or a question of great general or public importance. We do not see any basis for granting leave under the “otherwise” limb either. The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are not met.

8.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.