Re Sumon

CAMP 13/2019

[2020] HKCA 221

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 13 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 926/2017)

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Before:  Hon Cheung JA, Chu JA and Barma JA in Court

Date of Judgment:  23 April 2020

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J U D G M E N T

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

1.On 26 July 2019, this court (Chu and Barma JJA) handed down a judgment dismissing the applicant’s application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 20 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the application, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.The applicant subsequently applied, by a Notice of Motion dated 31 July 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance on the grounds of the application is not true.

On the strength of the grounds not made a complaint about the poor performance of his duty lawyer is due to 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.”

4.In the affirmation dated 31 July 2019, the applicant deposed that:

“The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

The [judges] also failed to find out the clear details of the current situation of Bangladesh.”

5.The applicant lodged a written submission in support of the application on 3 September 2019.  In the written submission, the applicant made two further submissions:

(1)  The Board failed to scrutinize the decision of the Director and did not consider matters such as the condition in Bangladesh, in breach of the high standard of fairness; and

(2)  The decision-maker did not act fairly.

6.Having considered the applicant’s Notice of Motion, affirmation and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion, affirmation and written submission.

7.The matters stated by the applicant in the Notice of Motion, affirmation and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion, affirmation and written submission.  

8.We have held that the application for leave for judicial review was properly dismissed for being an abuse of process because the applicant was seeking to relitigate his application following the dismissal of HCAL 340/2017 ([19] of our judgment).  The applicant failed to address this issue in any of the grounds raised in the Notice of Motion, affirmation or written submission.

9.For the grounds raised in the affirmation dated 31 July 2019, we have addressed the ground based on state acquiescence at [20].  As for the ground based on the current situation of Bangladesh, this court did not deal with this issue because it was not a ground of appeal in the appeal before this court.

10.As for the grounds raised in the Notice of Motion and the written submission, these are related to the Board and not our judgment.

11.In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

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

13.For these reasons, the Notice of Motion dated 31 July 2019 is dismissed.

The applicant acting in person