RE MOHAMMAD AMIN UDDIN MONDOL

CACV 323/2018

[2019] HKCA 228

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 323 OF 2018

(ON APPEAL FROM HCAL 938/2017)

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J U D G M E N T

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

1.  On 2 November 2018, this court (Yuen, Barma and McWalters JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 13 July 2018 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decisions of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a notice of motion dated 9 November 2018, for leave to appeal to the Court of Final Appeal.  The applicant stated in his notice of motion that:

“- The claims that the judgment has made stated is no substance in the grounds of the application is not true.

- On the strength of the grounds not made a complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

- the applicant gently did not have enough time to address the bundle rest of the grounds I will submit as soon as possible”

4.  In an affirmation filed on the same date, the applicant complained that the court was wrong to conclude there was no state acquiescence or involvement and had failed to ascertain the current situation in Bangladesh.

5.  Because the applicant failed to comply with the unless order made by the Registrar of Civil Appeals on 13 November 2018, the applicant was debarred from lodging any written submissions and the application was dealt with on paper on the basis of the materials already filed before the court.

6.  Having considered the applicant’s notice of motion and affirmation, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of his notice of motion.

7.  The matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in his notice of motion.  The first paragraph of the notice of motion is vague and lacks particulars.  The matter raised in the second paragraph was not relied on by the applicant in his notice of appeal.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally 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]  As for the third ground, the applicant never provided any further document to supplement his notice of motion.

8.  The matters mentioned in the affirmation do not take the applicant any further.  As we pointed out in [16] of our judgment, the applicant’s ground of appeal based on state acquiescence or involvement was vague and unparticularised and thus could not succeed.

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

10.  For these reasons, the notice of motion dated 9 November 2018 is dismissed.