Re Nabin Fakir

CACV 583/2018

[2019] HKCA 1027

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 583 OF 2018

(ON APPEAL FROM HCAL NO. 232 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.By a judgment dated 25 June 2019 ([2019] HKCA 656), the Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 11 December 2018 in HCAL 232/2018 refusing to grant leave to him to apply for judicial review.

2.By a notice of motion dated 8 July 2019, the applicant now seeks leave to appeal to the Court of Final Appeal on the following ground:

“Unfortunately my Court of Appeal (sic) is refused by the Honourable Justice of the Court of Appeal, but I do not fined (sic) any good cause is shown by the Honourable Judge so I am not satisfy, I wish I will get a good result for my next court, I sought to get good result.”

3.Pursuant to the directions made by the Registrar of Civil Appeals (“the Registrar”) on 9 July 2019, the applicant lodged his written submissions on 22 July 2019.  There, the applicant reiterated his personal background and his fear of being killed by his enemies in Bangladesh if refouled.  He further complained that he was requested to focus on identifying the legal errors of the Judge’s decision at the appeal hearing but he was unable to do so as he had no lawyer to assist him.

4.The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.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 applicant merely regurgitated his arguments on his alleged fear of being killed by his enemies upon his return to Bangledash which was canvassed and duly rejected by the Judge and the Court of Appeal.  Further, the Court of Appeal had repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a non-refoulement protection claimant would entitle to an absolute right to free legal representation at all stages of the proceedings.  As the applicant sought to appeal against the Judge’s decision, he was obliged to pinpoint errors of law or procedural unfairness at the appeal hearing.  The applicant did not have reasonably arguable basis to challenge the Judge’s findings or the judgment made by the Court of Appeal.

6.For the reasons that we gave in our judgment of 25 June 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

7.Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

The applicant, unrepresented, acted in person.