Case Document

100%Judiciary

CACV 25/2019

[2019] HKCA 1043

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2019

(ON APPEAL FROM HCAL 1052 OF 2017)

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RE

A B M BORHANUR RASHED

Applicant

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Before: Hon Yuen, Au JJA and Lisa Wong J in Court

Date of Written Submission: 15 August 2019

Date of Judgment: 16 September 2019

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J U D G M E N T

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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 1 August 2019 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 24 July 2019[1] (“Judgment”) of the Court of Appeal (Yuen JA and Lisa Wong J), dismissing the applicant’s appeal from a decision dated 3 January 2019[2] (“Judge’s Decision”) of Deputy High Court Judge Bruno Chan (“Judge”) refusing him leave to apply for judicial review of the decision dated 24 November 2017 (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) in respect his non-refoulement claim (“NRF 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.The notice of motion filed by the applicant on 1 August 2019 and paragraphs 1 to 12, 22 to 24 and 30 to 34 of the applicant’s skeleton argument dated 15 August 2019 are, or are in all material respects, the same. Suffice to say that such identical content and the remaining paragraphs of the applicant’s skeleton submission (i.e. paragraphs 13 to 21 and 25 to 29) largely repeated the written submission that the applicant previously placed before us, which we summarised, and dealt with, in [17] of the Judgment.

Discussion

5.The applicant has not by his aforesaid notice of motion or skeleton submission raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

6.In so concluding, we have not overlooked the applicant’s repeated assertion[3] that his appeal raised an issue as to the standard and approach for the assessment of evidence and credibility for non-refoulement claims. It did not: see the proposed grounds for judicial review of the Board’s Decision and the grounds for appeal against the Judge’s Decision, as respectively set out in [13] and [16] of the Judgment. Neither set of grounds sought to question any established legal principles regarding the standard and approach for the assessment of evidence and credibility for non-refoulement claims.

7.Further, as noted in [21] of the Judgment, the Board primarily found, on the applicant’s own account of the voting procedure and arrangement on the day in question, that he could not have seen the 2 Bangladesh National Party members vote twice and therefore could not have had any confrontation with them over the election malpractice. That such a confrontation had taken place underpinned the whole NRF Claim. Yet, the grounds of appeal raised in the notice of appeal before us did not specifically address this primary finding. Nor did the applicant in the amended Form 86 (signed by solicitors and counsel) point to any error of law, procedural unfairness or irrationality in such finding by the Board.

8.For the same reasons, we see no justification to grant leave under the “or otherwise” limb either.

9.For these reasons, we dismiss the notice of motion.