RE MAHFUZUL HAQUE

CACV 273/2020

[2021] HKCA 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2020

(ON APPEAL FROM HCAL NO 1971 of 2018)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 21 January 2021, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Lung given on 16 July 2020 which refused to give him leave to apply for judicial review.     

2.  On 26 January 2021, the applicant filed a notice of motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  He has also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our judgment.  We will not repeat them.

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.

6.  The notice of motion set out three grounds for the application as follows:

(1) The judges did not consider that the applicant could not return to his country of origin because of fear from his enemy.  He feared his life would be in danger or he would be killed by his enemies who still keep on threatening him.

(2) Failure to consider the country of origin condition information (“COI”) that the authority in the applicant’s country would not be able to protect him.

(3) Failure to properly assess the applicant’s claim under the BOR 3 risk ground in that he would be in danger if refouled.

7.  The applicant’s written submission advanced the following arguments:

(1) The Director and the Board failed to comply with their duties to make sufficient inquiries into COI and adopted a passive approach in contravention of the high standard of fairness set out in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

(2) The Director and the Board failed to take into account and/or give proper weight to the relevant considerations and materials, hence their decisions were illegal.  Specifically, the judges failed to give due regard to the fact that:

(a) the Board did not follow the high standard of fairness; and

(b) the applicant’s claim is based on a true story, and his life would be at risk if he returns to his country.

(3) The appeal judges erred in finding there are no merits in his claim.  His claim was not personal or private in nature, and he could prove that he would face real risk if he were to return to his country.

8.  We are of the view that what was put forward in the notice of motion and the written submission do not provide viable grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has not set out any proposed ground of appeal.  Neither has he identified any question of great general or public importance, as required by section 22(1)(b).  Further, for the reasons given in [13] to [19] of our judgment, these arguments have no merits.       

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

10.  As the statutory requirements for giving leave to appeal are not met, we dismiss the notice of motion.