RE KAMAL SHAHIDUL ISLAM

CACV 203/2019

[2019] HKCA 1277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2019

(ON APPEAL FROM HCAL 1184/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 9 October 2019[1] by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 25 September 2019 ([2019] HKCA 1063) (“Judgment”), dismissing the applicant’s appeal from a decision dated 16 April 2019 ([2019] HKCFI 947) by Deputy High Court Judge K W Lung, refusing him leave to apply for judicial review of the decision dated 11 June 2018 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement 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.  Under 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.  In seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“With respect I want to inform you that I couldn’t accept the decision made on 25 September 2019 by judge, because there are some incorrect informations which are used by the Court to make this decision. Decision maker relied just a simple heresay. The Judge didn’t verify all the matters which I gave to the Court in previous time. This decision make me irrational of my life and disappointed me about my life security. This decision was unfair and reflected my claims.”

5.  In breach of paragraph 1 of the directions given by the Registrar on 10 October 2019, the applicant failed to lodge any written submission in support of his notice of motion on or before 23 October 2019 or at all.  We shall determine this application on the basis of the notice of motion.

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb.

8.  First, the applicant’s disappointment with the Judgment, while understandable, cannot itself be a ground for appeal to the CFA. 

9.  Second, he has not identified in the notice of motion, or lodged written submission to identify, what incorrect information we had used, or what hearsay we had relied on, in rendering the Judgment.

10.  Third:

(1)  The applicant appears to have misunderstood the court’s role in an application for leave to apply for judicial review of a refusal of a non-refoulement claim and in an appeal against a refusal of leave for judicial appeal.  

(2)  In the applicant’s case, as noted in [22] of the Judgment, his non-refoulement claim failed on the facts and evidence at both tiers of the screening process, with the Board finding no risk of harm to the applicant upon his return to Bangladesh from the Awami League due to his political affiliation with the Bangladesh Nationalist Party.  The applicant had not, by his proposed grounds for judicial review or grounds of appeal, articulated any or any proper basis to question such findings against him.

(3)  We have already explained in [19] and [20] of the Judgment that a judicial review is not a channel for a reconsideration of facts.  The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong. In short, contrary to the suggestion made in the notice of motion, it is not the CA’s task to “verify” the facts previously given by the applicant.

11.  The notice of motion has not really engaged the reasons given in the Judgment.

12.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion