RE ISLAM MD SHORIFUL

CACV 14/2019

[2019] HKCA 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2019

(ON APPEAL FROM HCAL NO 602 OF 2018)

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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.  By a judgment dated 17 May 2019 ([2019] HKCA 553) (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 9 January 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”).  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 23 February 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 31 August 2016 (“the Director’s First Decision”) and 27 June 2017 (“the Director’s Second Decision”) rejecting the applicant’s 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 the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 22 May 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  In the Notice of Motion, the applicant set out the following grounds:

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favour while rejecting my claim. Actual life occur different situation then what is mentioned in the COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.” [sic]

5.  In compliance with the directions given by Master Au‑Yeung on 28 May 2019, the applicant lodged his written submission on 4 June 2019.  In his written submission, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.  He further submitted that the Adjudicator (ie, the Board) acted in a procedurally unfair manner and failed to access his credibility properly.  He also complained about the Wednesbury unreasonableness of the decision-makers and cited Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence exp Smith [1996] QB 517 in support.

6.  We have duly considered the applicant’s Notice of Motion and his written submission.  Pursuant to paragraph 3 of Practice Direction 2.1, we proceeded to consider this application on papers without any oral hearing.

7.  First of all, the applicant’s written submission on the issue of “high standards of fairness” was essentially the same as the one he submitted before this Court on 26 March 2019 when he appealed against the Deputy Judge’s Decision.  We have dealt with them at [19] and [20] of the Judgment.

8.  Secondly, the rest of the grounds in relation to Wednesbury unreasonableness were against the decision makers (ie, the Board).  The Deputy Judge had found that there was no error in law or procedure in the decision making process: see [47] of the Deputy Judge’s Decision.  We do not find any legal error in his decision: see [21] of the Judgment.

9.  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.

10.  None of the grounds raised by the applicant identified any errors in the Judgment.  These are not viable grounds.

11.  In any event, for the reasons that we gave in the Judgment, we did not see any prospect of success in the applicant’s intended appeal against the Judgment.  None of the questions raised by the applicant in the notice of motion or in his written submission involves any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  Nor do we find any basis to grant leave on the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance are not met.

12.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.