RE AKTER SALMA

CACV 313/2019

[2020] HKCA 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 313 OF 2019

(ON APPEAL FROM HCAL NO 332 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  By a reasons for judgment dated 14 October 2019 ([2019] HKCA 1111) (“the Judgment”), this Court (Hon Zervos, Au JJA and Coleman J) gave the reasons for dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam dated 25 June 2019 ([2019] HKCFI 1607) refusing leave to apply for judicial review.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office dated 6 July 2017 and the decisions of the Director of Immigration dated 29 October 2015 and 24 October 2016 rejecting the applicant’s non‑refoulement claim.

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

4.  By a Notice of Motion dated 4 November 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

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.  In the Notice of Motion, the applicant set out the following grounds:

“- 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.” [sic]

7.  The applicant did not submit her written submissions as directed by Master Au-Yeung on 5 November 2019.  She filed a supporting affirmation on 4 November 2019.  In that, she argued (a) the court was wrong in law in holding there was no state acquiescence or involvement; and (b) the court failed to find out the clear details of current situation in Bangladesh.

8.  We have duly considered the applicant’s Notice of Motion and the supporting affirmation.  Pursuant to paragraph 3 of Practice Direction 2.1, we did not find any exceptional circumstance in this application to deviate from the usual practice and thus proceeded to consider this application on papers without any oral hearing.

9.  In our view, this application is devoid of merits.

10.  Firstly, none of the grounds raised by the applicant are viable grounds of appeal:

(1)  the applicant has not in the Notice of Motion or written submissions identified any errors in the Judgment;

(2)  for the grounds in her Notice of Motion and supporting affirmation in relation to the duty lawyer’s poor performance, insufficient time to address the bundles and the findings of state acquiescence/involvement and current country situation, we have rejected these complaints by the reasons set out at [23] of the Judgment.  Other than repeating her above complaint, the applicant has not pointed out with any particulars as to the error committed by this Court in those reasons.

13.  Secondly, in any event, the applicant had also failed to identify in the Notice of Motion any question of great general or public importance that ought to be submitted to the Court of Final Appeal for decision.  Nor do we see any basis to grant leave on the “otherwise” limb.

14.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484) are therefore not met.  Accordingly, we refuse to grant leave to the applicant to appeal to the Court of Final Appeal and dismiss her Notice of Motion.