RE KHAN MEHDI HASSAN

CACV 497/2019

[2020] HKCA 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 497 OF 2019

(ON APPEAL FROM HCAL NO. 528 of 2018)

____________________

____________________

________________

JUDGMENT

________________

Hon Alex Lee J (giving the Judgment of the Court):

1.  On 3 June 2020, this Court (Kwan VP and Alex Lee J) handed down a judgment[1] (“the Judgement”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 October 2019[2] refusing him leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) concerning his non-refoulement protection claim.  

2.  The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in the Judgment.  We shall not repeat them here.

3.  By a Notice of Motion filed on 12 June 2020, the applicant applies for leave to appeal against the Judgement to the Court of Final Appeal.  The Registrar of Civil Appeals directed that the applicant shall lodge his written submissions in support of the application on or before 26 June 2020.  The applicant lodged his written submission on 24 June 2020. 

4.  Having considered the applicant’s Notice of Motion and 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 his Notice of Motion and written submission.  

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.  In the Notice of Motion, the applicant says that he has problem in his own country. He asks for time to stay here so that he can solve his problem.  He says that at this moment he cannot go back to his home country because there is still danger for him.  He asks that he be allowed to proceed his case further.   

7.  In his written submission, the applicant repeats his assertions made before that he was suffering from one of the major problems in his country and that was why he came to Hong Kong as an asylum seeker.  He says that his life was “so worse” there due to his enemies who are still looking for his whereabouts and will kill him when they see him.  He says his enemies have lots of manpower and strong political support.  He says that death and torture in police custody of innocent persons are common in his country.  He says that the culprits can act freely because of their power and they can bribe their way out even if they are arrested. He says that he may be tortured or killed and no one stand with him in his country.  On the other hand, he says that he is trying to sort out his problem with the help of some persons but he needs some more time to do that.   

8.  In the Judgment, at [11], we pointed out that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant and if no viable ground is put forward, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  At [12], we pointed out that in determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

9.  In the Notice of Motion, the applicant simply repeats what he has said before which, as noted at [15] of the Judgment, are just bare assertions without particulars or evidence in support.    

10.  The matters stated in the Notice of Motion and the written submission do not constitute any grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has not identified any question of great general or public importance, as required by section 22(1)(b). 

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

12.  For the above reasons, the statutory requirements for giving leave to appeal are not met. Accordingly, we dismiss the Notice of Motion.