RE MOZAMMEL

CACV 58/2019

[2019] HKCA 1078

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 58 OF 2019

(ON APPEAL FROM HCAL NO. 698 OF 2018)

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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 4 June 2019 ([2019] HKCA 614), the Court of Appeal (Yeung Ag CJHC (as he then was) and Lisa Wong J) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 30 January 2019 in HCAL 698/2018 refusing to grant leave to him to apply for judicial review.

2.  By a notice of motion dated 17 June 2019, the applicant now seeks leave to appeal to the Court of Final Appeal.  

3.  In the notice of motion, the applicant reiterated the factual background of his case and set out his disagreements with the decision of the Torture Claims Appeal Board (“the Board”).  He further put forward the following complaints against the Board’s decision:

(i)  approaching the evidence in an unfair manner;

(ii)  mischaracterising the evidence; and

(iii)  failing to consider the Country of Origin Information in relation to his country condition.

The applicant also complained that the Judge had failed to review the decision of the Board under “rigorous examination and anxious scrutiny”

4.  On 3 July 2019, the Registrar of Civil Appeals (“the Registrar”) directed the applicant to lodge with the court his written submissions on or before 19 July 2019.  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 shall be determined on paper accordingly.  The applicant lodged his written submission on 16 July 2019.  In his written submissions, he merely repeated his complaints as set out in the notice of motion.

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.  We have repeatedly emphasised that judicial review is not an avenue for revisiting the assessment of the Board in the hope that the court may consider the matter afresh even in the absence of any legal error.  The Board dismissed the applicant’s case for his failure to establish that he had ever received any direct or genuine threat and harm by his enemy or the Bangladeshi authorities and that the applicant was not a genuine asylum seeker.  We had in [11] of our judgment endorsed the Judge’s findings that the Board’s decision was rightly and fairly made.  In our judgement, what the applicant stated in the notice of motion and in his written submissions cannot stand and do not constitute grounds for granting leave to appeal to the Court of Final Appeal.

6.  For the reasons that we gave in our judgment of 4 June 2019, we did not see any prospect of success in the applicant’s intended appeal against the Judge’s order.  None of the questions raised by the applicant in the notice of motion or his written submissions involve an arguable point or a question of great general or public importance.  Nor do we see any basis to grant leave under the “otherwise” limb.  The statutory criteria for granting leave to appeal to the Court of Final Appeal under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) are 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.