RE MD KADER

CACV 492/2018

[2019] HKCA 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 492 OF 2018

(ON APPEAL FROM HCAL NO. 860 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 4 March 2019, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 21 September 2018 refusing him leave to apply for judicial review.     

2.  On 15 March 2019, the applicant filed a Notice of Motion together with a supporting affirmation to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission in support of his application. 

3.  Having considered the applicant’s notice of motion, 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 his notice of motion.

4.  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.

5.  The Notice of Motion stated that: (i) It is not true that there is no substance in his grounds for the application; (ii) The applicant did not complain about the performance of the duty lawyer because of fear that he would be picked out for “misappropriation” by the adjudicator; and (iii) The applicant genuinely did not have enough time to address the hearing bundle.

6.  The applicant’s affirmation set out two grounds of appeal, namely, (i) the Court was wrong in law in holding there is no state acquiescence or involvement, and (ii) the Court failed to find out the details of the current situation in Bangladesh.

7.  The applicant’s 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 and Wednesbury unreasonableness.  It also cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and submitted 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, citing Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 383D; Pearl Securities Limited v Stock Exchange of Hong Kong Limited [1999] 2 HKLRD 243, 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217.   

8.  The grounds and matters set out in the Notice of Motion, the affirmation and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal. 

9.  Firstly, they all relate to the circumstances of the case, and do not involve any question of great general or public importance, as required by section 22(1)(b).  Secondly, the ground about the performance of the duty lawyer and the ground about failure to ascertain the condition in Bangladesh had not been argued before the Judge nor in the appeal before 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 appeal 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]  Thirdly, as pointed out in [11] of this Court’s Judgment, the ground about state acquiescence bears no relevance to this case.  This Court therefore did not, and did not have to, consider and make finding on state acquiescence.  Nor did we have to, and in fact, consider the latest situation in Bangladesh.  Fourthly, for the reasons given by the Judge in [15] of the Form CALL-1[4], we agree the complaint of late delivery of the appeal bundle for the appeal before the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office has no merit.      

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.