Re Mahiuddin Mohammad

CACV 106/2019

[2020] HKCA 261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 106 OF 2019

(ON APPEAL FROM HCAL 1127/2017)

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

Date of Judgment: 7 May 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 10 September 2019, this court (Chu JA, Barma JA and Au JA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 21 February 2019 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 decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.The facts and issues in the appeal, 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 12 September 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 in the grounds of the application is not true.

On the strength of the grounds not made a complain about the poor performance at his duty lawyer is do of fearing he will be picked out for misappropriation 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 12 September 2019, the applicant deposed that:

“The honourable judges from the court were wrong in law in holding that there was no state acquiescence or involvement.

The honourable judges from the court 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 15 October 2019.  In the written submission, the applicant submitted that the Board failed to meet the high standard of fairness and that the decision maker failed to meet the minimum standards of procedural fairness.  He also submitted that the outcome of his case would have implication on other claimants and the procedures in the Board.

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 documents filed.

7.The matters stated by the applicant 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.  

8.For the ground raised in the affirmation dated 12 September 2019 based on state acquiescence, we note that this ground has not been raised in the Notice of Appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3] 

9.As for the ground in the affirmation based on the current situation in Bangladesh, we have repeatedly held that an application for judicial review does not operate as a further appeal.  The court would only interfere with the Board’s Decision if there had been a public law error and that the court would not be required to come to a view on the danger in Bangladesh even if this issue had been raised before it.

10.As for the other grounds raised in the Notice of Motion and the written submission, they are not concerned with any error in our judgment and are thus not viable grounds of appeal.

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 12 September 2019 is dismissed.

The applicant acting in person