RE BHUIYAN JAHIRUL ISLAM

CACV 141/2019

[2019] HKCA 1455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 141 OF 2019

(ON APPEAL FROM HCAL NO 1580 OF 2018)

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J U D G M E N T

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Hon Li J (giving the Judgment of the Court):

1.  On 10 September 2019, this court (Barma JA, Li and Lisa Wong JJ) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) refusing leave to the applicant to apply for judicial review[1]. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)[2]. The Board had dismissed his appeal from the decision of the Director of Immigration. The Director rejected his non‑refoulement claim on 8 February 2017.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[3]  We will not repeat them here.

Statutory threshold for leave to appeal to the CFA

3.  Under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, 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 CFA for decision.

The Applicant’s grounds in support of leave to appeal to CFA

4.  The applicant applied, by a notice of motion dated 23 September 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that (sic):

“ On 10 September 2019, the Honourable Judges from [the Court of Appeal] dismissed my judicial review but total community of tortured people of my country will loss there strength. I understand I will get a good result from the Court of Final Appeal.

In my Court of Appeal I wrote many cause but the Honourable Judges of the appeal board did not consider my points.

I wish the Court of Final Appeal for the great benefit of tortured people will give me good decision.”

5.  The applicant lodged a written submission in support of the application on 8 October 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return.  He also referred to some newspaper articles in Bangladesh on 7 October 2019 about the killing of an Awami League worker for suspected connection with the opposition party as follows (sic): -

“ … I had a big problem about politics. My enemy were very rich and powerfull. Actually they were related with Awami League. Awami League is current ruling political party. That means government force me to fled from Bangladesh. If I did not fled I could not alive. Police and Awami League worker killed me… I am the representative of oppressed people of Bangladesh. If I lose my case total oppressed people lose their mental power which is very important for us to alive… I request all to read 7.10.2019 date all newspaper of Bangladesh. In a university Awami League worker killed another Awami League worker as they think the poor boy have relation with opposition. But I was worker of BNP. So I have big problem. They will kill me any way.”

6.  Having considered the applicant’s notice of motion and written submission, 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 application on the basis of the documents filed.

Discussion

7.  The matters stated by the applicant 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.

8.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review.  Further, the applicant has not taken any application to adduce the newspaper articles as evidence or provide a copy of those articles to this court.  In any event, it is not the practice of this court to allow new evidence at this stage without any good reason.  We would therefore attach no weight to what the applicant represented to be the effect of the articles.

9.  The applicant has failed to identify any error in our judgment.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion dated 23 September 2019 is dismissed.