RE MOHAMED SHABDEEN MOHAMED GAZARI

CAMP 138/2019

[2020] HKCA 63

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 138 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 961 OF 2017)

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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 11 November 2019 ([2019] HKCA 1224), the Court of Appeal refused to grant an extension of time for the applicant to appeal against the decision of Campbell-Moffat J (“the Judge”) dated 30 April 2019 in HCAL 961/2017 in which the Judge refused to grant him leave to apply for judicial review.

2.  By a notice of motion dated 18 November 2019, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I am writing my ground for notice of motion regarding my appeal (Camp 138/2019) was rejected by high court. I would like to tell that I was unable to submit my supporting document during my refoulement interview. Because it was very difficult to obtain from piuyon (sic) in Sri Lanka and only I can remember my jail identification number it was 4343 in 2001 in magazine road jail and I come here after on bail so I don’t have anybody to send the jail superintendent to obtain my details and my father also passed away if I send somebody problem for them to solve the open warrant was issued by court to therefore I am soared to go (sic). thank you for kind help.”

3.  Pursuant to the directions made by the Registrar of Civil Appeals on 20 November 2019, the applicant was directed to lodge his written submissions on or before 2 December 2019 but he failed to do so.  The Registrar further directed that unless the court otherwise directs, the notice of motion shall be determined on paper only without an oral hearing.  As it is appropriate to do so, this application is processed on paper without an oral hearing.

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.  Here, the applicant’s case was rejected as a whole on the issue of credibility by the Board and he was not considered a genuine asylum seeker as he only raised his non-refoulement protection claim after he had entered into Hong Kong illegally for more than ten years and when he was arrested by the police.  

5.  The ground of complaint mentioned in the notice of motion had been canvassed by the Judge at [8] of CALL-1 Form in which the Judge found that despite the applicant’s indication of his desire to submit documentation in support of his claim, he failed to submit any documents after a significant number of years had passed.  In any event, the documents referred to by the applicant, namely (i) the police report stating that the applicant was involved in the beating of his enemy Roshan; and (ii) the court documents showing that he was involved in a court case regarding the assault of Roshan[1] were not directly relevant to the alleged fear of revenge and harm from Roshan.  The Judge had endorsed the Board’s view that apart from the serious doubt on the applicant’s veracity, taken his case at the highest, the greatest threat to the applicant was lawful prosecution for an admitted assault on the part of the applicant against Roshan and those facts, even were proven (which was not), would not assist the applicant’s case any further.  We find nothing amiss from the Judge’s decision and the applicant’s grounds of appeal is not arguable.

6.  For the reasons that we gave in the judgment of 11 November 2019, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion 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.