RE SHIPON MD

CACV 35/2019

[2019] HKCA 1461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 35 OF 2019

(ON APPEAL FROM HCAL NO 1049 OF 2018)

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J U D G M E N T

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

1.  By a judgment dated 15 July 2019 ([2019] HKCA 716) (“the Judgment”), this court (Hon Chu, Barma, Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”) dated 23 January 2019 refusing his leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 24 April 2018 and the decision of the Director of Immigration (“the Director”) dated 18 January 2016 rejecting the applicant’s 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 the Judgment.  We will not repeat them here.

3.  By a Notice of Motion dated 16 July 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

4.  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.

5.  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]

6.  In his supporting affirmation filed on the same date, the applicant listed further grounds of appeal.  In summary, they are: (a) this court was wrong in law in holding that there was no state acquiescence or involvement; and (b) this court failed to find out the clear details of the current situation of Bangladesh.

7.  In compliance with the directions given by Master Au‑Yeung on 18 July 2019, the applicant lodged his written submissions on 15 August 2019.  In the written submissions, the applicant repeated his claim and his personal background.  He also cited some legislation, such as the Basic Law, Hong Kong Bills of Rights Ordinance, and Convention against Torture, Other Cruel, Inhuman or Degrading Treatment or Punishment.  He then quoted some passages from Secretary for Security v Sekthevel Prabakar [2005] 1 HKLRD 289, AM v Director of Immigration and William Lam HCAL 102/2012, ST v Betty Kwan CACV 115/2013, Mallawa Arachchige Amitha Priyanganie Mallawa Arachchi v Wesley Wong HCAL 1/2014, R v Commissioner for Local Administration, ex parte Croydon LBC [1989] 1 All ER 1033, and Regina v Secretary of State for the Home Department [1987] 1 WLR 1482, as support for certain general principles.  He also argued that the decision maker was Wednesbury unreasonable.

8.  The applicant in his written submissions pursued certain submissions under the headings of “1^st GROUND” and “2^nd GROUND” with some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness”, and from The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly”.  It is however unclear from the submissions as to which specific grounds of appeal as mentioned above are regarded as “1^st GROUND” and “2^nd GROUND”.  We will proceed to consider them as in purported support of all the grounds mentioned in the applicant’s Notice of Motion and supporting affirmation.

9.  We have duly considered the applicant’s Notice of Motion, his accompanying affirmation and written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, we have considered this application on papers without any oral hearing.

10.  We do not find any merits in this application.

11.  First, the grounds advanced in the applicant’s Notice of Motion and supporting affirmation were not viable grounds:

(1)  The complaint relating to the duty lawyer’s performance was not argued before the Deputy Judge or this court.  It is not open to the applicant to raise it on appeal as a ground to challenge the Judgment[1].

(2)  The applicant was given an oral hearing before the Deputy Judge with ample time to address his case in court.  Thus, it is simply devoid of any substance for him to argue that he did not have sufficient time to address the appeal bundles.

(3)  Insofar as the additional grounds raised in the applicant’s affirmation with regards to the court’s alleged errors in the assessments of state acquiescence and the current situation in Bangladesh are concerned, as repeatedly emphasized, the court is not to provide a further avenue of appeal. The primary decision makers for the issues of state acquiescence and current situation of Bangladesh were the Director and the Board.  We had found that the Deputy Judge was correct in concluding that the Board did not commit any errors of law, mistakes of fact or procedural impropriety: see [21] - [25] of the Judgment.

12.  Second, the authorities quoted in the written submissions do not assist the applicant in this appeal.  Those were general principles that both this court and the Deputy Judge had borne in mind when determining the applicant’s case.

13.  In other words, the applicant failed to identify any particular and specific errors in the Judgment.  There are simply no viable grounds in this application.

14.  In the premises, we do not see any prospect of success in the applicant’s intended appeal against the Judgment.  In any event, none of the questions raised by the applicant in the Notice of Motion or in his written submissions involve any question of great general or public importance such that it 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.  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 are not met.

15.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his Notice of Motion.