RE ISLAM SHAMSUL

CACV 178 /2019

[2019] HKCA 1458

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 178 OF 2019

(ON APPEAL FROM HCAL NO 758 OF 2018)

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J U D G M E N T

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Hon Li J (giving the Judgment of the Court):

1.  On 10 September 2019, this court (Barma JA, Li and Lisa Wong JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) refusing leave to the applicant to apply for judicial review[1]. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”). The Board had dismissed his appeal from the decisions of the Director of Immigration[2]. The Director had rejected his non‑refoulement claim on 29 June 2016 and 25 October 2016.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[3]  We will not repeat them here.

Statutory threshold for leave to appeal to the CFA

3.  Under section 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.

The Applicant’s ground in support of leave to appeal to CFA

4.  The applicant applied, by a notice of motion dated 19 September 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that (sic):

“ …[The Court of Appeal] dismissed my judicial review, I am not satisfy about this judgment, if my claim completely dismissed the tortured people win all oppressed people will lose. To the greater interest of oppressed people I will go to the Court of Final Appeal”

5.  The applicant lodged a written submission in support of the application on 3 October 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return as follows (sic): -

“ …I was a worker of Bangladesh Nationalist Party (BNP) my main enemy was Bangladesh Awami League (BAL). BAL is current ruling party of Bangladesh. BAL is in power from 2008 to today. Leaders and workers of BAL become reckless in all sector. On the other hand worker of BNP are half death. Top to bottom all the worker are facing many problem given by current government. But present government truly realise that they have no support in general people. That was why 5 January 2014 and 30 December 2018 government did not give free and fair election. Government upon only terrorist and police. Now Bangladesh become worker of BAL.

Nobody cannot talk against government.  If anyone talk government its worker and police target him.  Secondly physically torture him or make some damage of house or shop or loot some money or valuable goods.  Police also give false case against him.  Arrest him.  At last police kill him.  From 2014 to 2019 police kill 500 opposition worker, some time on the name of drag control, sometime cross fire and sometime force disappearance. …I am representative of those oppressed people who are crying for BAL.  If I lose all those oppressed people lose their hop and mental power…”

6.  Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.  The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

8.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review.  Further, the applicant only stated that he was not satisfied with the judgment without identifying any error.  The applicant has failed to provide any viable ground of appeal.

9.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

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

11.  For these reasons, the Notice of Motion dated 19 September 2019 is dismissed.