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CACV 492/2019
[2020] HKCA 560
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 492 OF 2019
(ON APPEAL FROM HCAL NO. 1217 of 2018)
________________________
| Re : |
MASTOFA MOHAMMAD GOLAM |
Applicant |
________________________
| Before: |
Hon Kwan VP, Cheung JA and Alex Lee J in Court |
| Date of Judgment: |
29 July 2020 |
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JUDGMENT
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Hon Alex Lee J (giving the Judgment of the Court):
1. On 3 June 2020, this Court (Kwan VP and Alex Lee J) handed down a judgment[1] (“the Judgement”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 16 October 2019[2] refusing him leave to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim.
2. The facts and issues in the appeal as well as this court’s reasons for dismissing it are set out in the Judgment. We shall not repeat them here.
3. By a Notice of Motion filed on 16 June 2020, the applicant applies for leave to appeal against the Judgement to the Court of Final Appeal. The Registrar of Civil Appeals directed that the applicant shall lodged his written submissions in support of the application on or before 30 June 2020. However, the applicant only lodged his written submission on 2 July 2020 and that was done without leave of the court. In view of the fact that 1 July 2020 was a public holiday so that the applicant was in effect late for just one day, we are prepared to take his written submission into account in spite of the delay.
4. 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 and written submission.
5. 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.
6. The Notice of Motion states:
“On 3 June 2020 the Court of Appeal Judges dismissed my leave to apply for judicial review. But they failed to show any good casue. I do not agree about that decision. I want to appeal to the Court of Final Appeal to get fair judgment.”
7. In his written submission, the applicant simply repeats his assertion that he had political problem in his country so that he fled to Hong Kong to save his life. However, the Director and the Board dismissed his claim. He says that he does not agree with the decisions of the Judge and this court refusing him leave to apply for judicial review. Therefore, he wants to get justice from the Court of Final Appeal.
8. In the Judgment, at [11], we pointed out that the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. Then at [12], we pointed out that in determining an appeal, the Court of Appeal would focus on the decision of the Judge and would only reverse that decision if it could be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
9. In the present case, the Director had considered and rejected the applicant’s non-refoulement claim in respect of all the applicable grounds. The Board found that there was no evidence to show that the harm or threat of harm said to have been suffered by the applicant was instigated by any one qua the capacity of the government of Bangladesh. It was also found that he had not suffered serious ill-treatment or severe injury or serious harm which would place him at any substantial risk of cruel, inhuman or degrading treatment or punishment or risk of persecution in the future. Furthermore, the Board considered that the applicant could escape from the risk, if any, by internal relocation within Bangladesh. Lastly, the Board was also of the view that the applicant’s claim failed independently for a lack of credibility[3]. In the hearing before the Judge, the applicant failed to demonstrate that there were errors of law or procedural unfairness or irrationality in the decision of the Board.
10. In the Notice of Motion, the applicant, apart from saying that he disagrees with the Judgment and the decision of the Judge, does not set out in any particular respect how this court is wrong in law or has failed to apply the law properly.
11. The matters stated in the Notice of Motion and the written submission do not constitute any grounds for granting leave to appeal to the Court of Final Appeal. The applicant has not identified any question of great general or public importance, as required by section 22(1)(b).
12. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).
13. For the above reasons, the statutory requirements for giving leave to appeal are not met. Accordingly, we dismiss the Notice of Motion.
| (Susan Kwan) |
(Peter Cheung) |
(Alex Lee) |
| Vice President |
Justice of Appeal |
Judge of Court of First Instance |
The applicant, unrepresented, acted in person.
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