RE AL AMIN SHAK MOHAMMAD

CACV 311 /2018

[2018] HKCA 968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2018

(ON APPEAL FROM HCAL NO 639 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.  This is the applicant’s application for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 26 October 2018 ([2018] HKCA 740) dismissing his appeal against the refusal of leave to apply for judicial review concerning his non-refoulement claim.

2.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 14 February 2016 and was arrested by the police on the same day.  He lodged his non-refoulement claim on 14 March 2016.  His claim was based on his fear that if he were to return to Bangladesh, he would be harmed, or even killed, by people from a rival political party, the Awami League, because of his active participation in Bangladesh Nationalist Party.

3.  By the Notice of Decision dated 27 January 2017, the Director rejected the applicant’s claim.

4.  The applicant appealed to the Board against the Director’s decision and his appeal was dismissed by the Board on 6 September 2017.

5.  The applicant filed a Form 86 on 18 September 2017 to seek leave to apply for judicial review in respect of the decisions of the Director and the Board.  His application was refused by Deputy High Court Judge Woodcock on 3 July 2018.

6.  The applicant filed a Notice of Appeal against the decision of the judge on 12 July 2018.  The hearing of the appeal was vacated as he failed to lodge his skeleton argument by the time prescribed under an unless order.  The appeal was dealt with on paper.  It was dismissed by the Court of Appeal on 26 October 2018 as the intended application for judicial review does not have any prospect of success.

7.  The applicant filed a Notice of Motion on 12 November 2018 for leave to appeal to the Court of Final Appeal and lodged his written submissions on 26 November 2018.

8.  In the Notice of Motion filed on 12 November 2018, the applicant stated as follows:

“There is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favour on reject my claim. Actual life occur different situation then mentioned COI information. Officer and courts prefer to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining”.

“The decision is betray a bias and formula. Approached unlikely fairly access the danger of my life and clearly calculate to reject my claims”.

9.  In his 11-page written submission dated 26 November 2018, the applicant reiterated the basis of his fear and the threats he received previously.

10.  Pursuant to paragraph 3 of Practice Direction 2.1, subject to specific direction to the contrary, applications for leave to appeal to the Court of Final Appeal are dealt with and determined on paper without an oral hearing.  The Registrar of Civil Appeals had directed on 15 November 2018 that the notice of motion shall be determined on paper only without an oral hearing.  We see no reason not to adopt his direction.  This application should be determined on paper accordingly.

11.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, 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 Court of Final Appeal for decision.

12.  The grounds stated in the notice of motion are broad and vague and are without particulars.  The written submissions only concern case-specific matters, they do not involve any issue of great general or public importance.  The applicant has failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b).

13.  There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

14.  For the above reasons, we dismiss the application for leave to appeal to the Court of Final Appeal.