RE RASEL

CAMP 148/2019

[2020] HKCA 64

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 148 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 115 of 2017)

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.  On 13 November 2019, this Court (Chu and Barma JJA) handed down our judgment[1] refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Woodcock given on 20 October 2017 refusing him leave to apply for judicial review.     

2.  On 18 November 2019, the applicant filed a notice of motion together with an affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant also put in a written submission to support his application.

3.  Having considered the applicant’s notice of motion, affirmation 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 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 stated that: (1) it was not true that there was no substance in his grounds of application, (2) he did not complain about the poor performance of the duty lawyer due to fear of being picked out by the adjudicator for “misappropriating”, and (3) he did not have enough time to address the bundle. 

7.  The applicant further stated in his affirmation that: (1) the Court was wrong to hold that there was no state acquiescence or involvement, and (2) the Court failed to find out the details of the current situation in Bangladesh.

8.  The written submission recited the background and basis of the applicant’s claim, some provisions in the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture, the Hong Kong Bill of Rights Ordinance, Cap. 383 and the Basic Law as well as passages in cases on state acquiescence, Wednesbury unreasonableness, the procedural fairness and the high standards of fairness.  It argued that high standards of fairness are required because the decision had the effect of finally disposing of the applicant’s claim, making him liable to be removed.  It further argued that under the common law there are minimum standards of procedural fairness, and a decision maker was under a duty to act fairly.     

9.  We are of the view that the points and arguments advanced in the notice of motion, the affirmation and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they relate only to the circumstances of the applicant and his claim, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Secondly, we had pointed out in [14] of our judgment that the Judge did not refer to state acquiescence or involvement in his reasons.  There is therefore no basis for the argument that the Judge erred in finding there was no state acquiescence or involvement. Thirdly, the points made in the notice of motion and also the issue about country of origin condition were not raised before the Judge or in the application for leave to appeal out of time made to this Court.  It is not open to the applicant to raise these new points in this application for leave to appeal.  They are in any event general assertions wholly lacking in particulars.  

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

11.  As the statutory requirements for giving leave to appeal are not met, we dismiss the Notice of Motion.