RE ALAM MAHIR

CAMP 185/2018

[2019] HKCA 588

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 185 OF 2018

(ON AN INTENDED APPEAL FROM HCAL NO. 125 OF 2017)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  On 29 April 2019, this Court (Chu and Barma JJA) handed down our judgment[1] (“the Judgment”) refusing to give leave to the applicant to appeal out of time against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 25 August 2017.

2.  On 3 May 2019, the applicant filed a Notice of Motion to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission to support his application. 

3.  Having considered the applicant’s notice of motion 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 papers before us.

4.  The applicant stated in the Notice of Motion that he would like to review the decision because there is a disregard of his dangerous situation, and that if he were to return to India, his wife would be in danger.

5.  In his written submission, the applicant put forward the following grounds of appeal:

(1)  The danger he is facing is obvious as he was threatened and his house was burnt down.  He has started a family in Hong Kong, and he will face greater danger if he were to return to his home country.  He should be entitled to protection under the BOR 2 risk ground.

(2)  His case has not been fairly assessed and there was a lack of sensitivity in understanding his case.

(3)  The Court has failed to assess the actual situation in India, which is fraught with human rights and corruption problems.

(4)  The Board relied on COI that was obtained by simple research without understanding the cultural context in India.  State protection does not really exist there and people whose lives are at stake should be granted asylum.

(5)  The Board did not deal with his diagnosis of schizophrenia fairly and correctly.  Although the diagnosis was in 2010, it did not mean he did not have problem previously.  He used drugs because he was scared and was stressed and being threatened.  He did not lie about the fear of his enemies, which eventually caused his schizophrenic condition.  There was a lack of understanding of how the illness has developed and how it has affected his well-being.    

6.  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.

7.  What was put forward in the notice of motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, they all relate to the applicant’s personal circumstances and his claim, and do not involve any question of great general or public importance.  Secondly, for the reasons we gave at paragraphs 18 and 19 of our judgment, the applicant’s claim that he should not be refouled to India because his life would be in danger and the grounds in paragraph 5(1) to (4) above are unarguable.  Thirdly, as to the complaint under paragraph 5(5) above, this was not specifically raised as a ground for judicial review before the Judge.  Nor was it argued as one of the intended grounds of appeal in the application for leave to appeal out of time before Deputy High Court Bruno Chan or in the renewed application to this Court. It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the application before it.[2] Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal.[3]   

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

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