RE DALOWAR MOHAMMAD

CACV 279/2018

[2019] HKCA 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 279 OF 2018

(ON APPEAL FROM HCAL NO 533 of 2017)

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JUDGMENT

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Hon M Poon J (giving the Judgment of the Court):

1.  On 19 October 2018, this court (Chu JA and Poon J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) given on 25 June 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim. On 29 October 2018, we handed down our Reasons for Judgment.

2.  We do not seek to repeat the facts and issues in the appeal, as well as the court’s reasons for dismissing it as set out in our judgment.[1]

3.  The applicant subsequently applied, by a notice of motion dated 19 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that he fears that his life will be in danger if he returns to Bangladesh.

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of his application on 3 December 2018.  In his written submission, the applicant reiterated his background as was presented before the Board and explained why it is unsafe for him to return.  He sought an extension of time for the present application.

5.  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 his notice of motion and written submission.

6.  Although the applicant forwarded no explanation as to why the notice of motion was not filed within 28 days of the date of our judgment, having read his written submission we consider it appropriate to deal with his application made out of time.  None of the matters stated by the applicant in his notice of motion 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 in accordance with 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 in his notice of motion and his written submission.

7.  The applicant’s claim that it is unsafe for him to return is not of itself a ground for seeking leave to appeal.  That has been fully canvassed by the Board.  The Judge rightly pointed out that the Board made no findings as to the applicant’s credibility and made the assessment of his claim on the basis of what he said was true.  We concluded at [10] of our judgment that the applicant was unable to demonstrate or identify any errors committed by the Judge in arriving at the conclusion to refuse leave to apply for judicial review.

8.  In our view, this complaint is plainly not reasonably arguable before the Court of Final Appeal.

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

10.  For these reasons, the notice of motion dated 19 November 2018 is dismissed.