Case Document

100%Judiciary

CACV 40/2019

[2019] HKCA 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 40 OF 2019

(ON APPEAL FROM HCAL 231/2018)

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RE:

RANA MOHAMMAD MASUD

Applicant

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Before: Hon Au JA, Lisa Wong and ST Poon JJ in Court

Date of Written Submissions: 20 June 2019

Date of Judgment: 4 July 2019

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.Before the court is a notice of motion filed on 20 May 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 17 May 2019[1] (“Judgment”), dismissing the applicant’s appeal from Deputy High Court Judge Bruno Chan’s decision dated 25 January 2019[2] refusing him leave to apply for judicial review of the Torture Claims Appeals Board (“Board”)’s decision dated 8 February 2018 in respect his non-refoulement claim.

Paper disposal appropriate

2.Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing. We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.By virtue of s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.First, by the notice of motion, the applicant asserted as follows (sic):

“- The claims that the Judgment has made stated is no substance in the grounds of the application is not true.

- On the strength of the grounds not mad a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

- The applicant gently did not have enough time to address the bundle. Rest of the grounds I will submit as soon as possible.”

5.Second, by an affirmation filed on the same date as the notice of motion, the applicant put forward these 2 grounds for his application:

(1) “The Honourable Judges from the Court were wrong in law in holding that there was no state acquiescence or involvement.”

(2) “The Honourable Judges from the Court also failed to find out the clear detailes (sic) of the current situation of Bangladesh.”

6.Third, the applicant then filed 10-page long written submission on 20 June 2019, in which he set out article 7 of the International Covenant on Civil and Political Rights, s 5 and articles 2 and 3 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383), articles 28, 39 and 48 of the Basic Law and articles 1, 2, 3 and 16 of the United Nations Convention against Torture as well as various passages from a number of cases.

Discussion

7.The applicant has not by his notice of motion, affirmation or written submissions identified any issue of great, general or public importance that should be submitted for determination by the CFA.

8.Nor do we see any basis to grant leave under the “or otherwise” limb.

(1)   We do not quite follow the first ground stated in the notion of motion. Insofar as it is suggested in the second ground that the applicant had wanted, but chosen not, to complain in his appeal to the Board about the performance of the duty lawyer representing him before the Director of Immigration (“Director”), we do not see any consequential prejudice to the applicant because the appeal before the Board was in the nature of a complete re-hearing. The third ground (insufficient time to “address the bundle”) is baffling. The appeal bundle before us was actually compiled and lodged by the applicant himself.

(2)   The 2 grounds stated in the affirmation are misconceived. As explained in [20] of the Judgment, the Director and the Board are the fact finders in a non-refoulement claim. They alone take, and assess, the evidence including country of origin information and find facts including those relating to state acquiescence or involvement, if relevant. We did not hold as to the presence or absence of state acquiescence or involvement. Nor was it not within our purview to “find out the clear detailes (sic) of the current situation of Bangladesh”.

(3)   Notwithstanding the length of the written submission, the applicant has not explained how any of the convention articles or judicial statements mentioned may be relevant to the question whether his case should be heard by the CFA.

9.Neither of the statutory criteria under s 22(1)(b) is met. Accordingly, we dismiss the notice of motion.