Re Akhil Sarker

CACV 165/2020

[2021] HKCA 208

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 165 OF 2020

(ON APPEAL FROM HCAL NO 1595 OF 2018)

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Before: Hon Cheung, Barma and Au JJA in Court

Date of Written Submissions: 8 December 2020

Date of Judgment: 1 March 2021

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J U D G M E N T

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

1.On 25 November 2020, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Cheung and Au JJA) judgment of 19 November 2020 (“the Judgment”) [2020] HKCA 942. In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung dated 28 May 2020 dismissing his application for leave to apply for judicial review.

2.The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.

3.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

4.In his Notice of Motion, the applicant raised the following grounds of appeal:

“1. In my judgment, the honourable judge’s failure to consider my fear in my claim, that why I should not return to my country of origin, that I am still scared for my life, that I would face real risk upon refoulment.

2. The assessor failure to consider, the country of origin condition of Bangladesh, whereas I would be face harm or might be killed by enemies, who still threatened for my life.

3. The assessor failure to assessed my claim all applicable grounds, my claim, specially under BOR3 claim.”[sic]

5.In his skeleton submissions of 8 December 2020 filed pursuant to the Court’s directions, the applicant submits that (a) the Board and the Director failed to make sufficient inquires; (b) the Board and Director failed to take into account relevant factors and wrongly took into account irrelevant factors; (c) the judges wrongly supported the Board’s Decision as it did not adhere to high standard of fairness; and (d) the decision makers did not properly observe his fear.

6.In our view, the applicant’s application is totally without merit.  The matters raised in the Notice of Motion and written submissions fail to pinpoint any specific error in our judgment or the judgment of the court below.

7.In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

8.For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.

The applicant acting in person