RE SHAIK ABDUL MONIR

CACV 52/2019

[2019] HKCA 1415

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 52 OF 2019

(ON APPEAL FROM HCAL NO. 922 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 25 July 2019 ([2019] HKCA 771), the Court of Appeal dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) dated 23 January 2019 refusing to grant him leave to apply for judicial review.

2.  By a notice of motion dated 24 September 2019, the applicant seeks leave to appeal to the Court of Final Appeal on the following grounds:

“1. The learned Judges were wrong as a matter of law for not having applied the principle of irrationality to the decision made by the Director of Immigration on 25 July 2019, refusing my application for judicial review.

2. There is some error in law in my decision. The decision maker just relied on COL information and my previous facts which were favour on rejecting my claim. Actual life occur different situation than mentioned COL information, officer and courts prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining.

3. Procedural unfairness. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.

4. The Judge did not apply the law properly.”

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 25 September 2019, the applicant should have lodged with the court his written submissions on or before 8 October 2019 but only did so on 9 October 2019.  As there is only a delay of one day, we are prepared to excuse it and allow the written submissions to stand.  There, the applicant stated that the high standard of fairness was required in determining his claim for non-refoulement protection as it would affect his substantive right and made him liable to be removed.  He also complained of procedural unfairness on the part of the Torture Claims Appeal Board (“the Board”) in failing to properly assess his credibility.  He had cited some cases and legal principles in relation to torture claim in support of his contentions. 

4.  The Registrar of Civil Appeals had further directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Under section 22(1)(b) of the Hong Kong 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.  For the reasons that we gave in our judgment of 25 July 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  Firstly, the grounds of appeal against the Judge’s decision were general assertions without particulars or proper basis and are not viable grounds of appeal.  Secondly, his complaints against the Board’s decision was a request to this Court to reassess his case which was unjustified.  As this Court repeatedly emphasised, assessment of evidence, materials on country of origin information, risk of harm and state protection are primarily within the province of the Board (and the Director) and the court would not intervene unless there are valid public law grounds.  As stated at [10] of our judgment, we agreed with the Judge’s decision that the applicant’s challenges against the Board’s decision were unmeritorious and we found no errors of law or procedures in the Judge’s decision.

6.  In our judgment, none of the grounds stated in the notion of motion and written submissions can constitute valid grounds of appeal to the Court of Final Appeal. None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

7.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.