RE DOLY SHARMIN AKTHER

CACV 301/2018

[2019] HKCA 265

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 301 OF 2018

(ON APPEAL FROM HCAL NO. 1135 OF 2017)

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JUDGMENT

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

1.  By a judgment dated 21 December 2018 ([2018] HKCA 814) (“the Judgment”), this Court (Hon Yeung Acting CJHC, Yuen and Pang JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam dated 28 June 2018 refusing to grant leave to him to apply for judicial review.  The intended judicial review was against the decisions of the Director of Immigration (“the Director”) dated 12 July 2016 and 24 July 2017 and the decision of the Torture Claims Appeal Board (“the Board”) dated 7 December 2017.  The applicant now seeks leave to appeal to the Court of Final Appeal.

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 7 January 2019, the applicant applied for leave to appeal against the Judgment to the Court of Final Appeal.

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

(1)   It is not true that there is no substance in the grounds of the application;

(2)   The applicant did not complain about the poor performance of the duty lawyer because he feared he would be picked out by the adjudicator for “misappropriating”; and

(3)   The applicant genuinely did not have enough time to address the bundle.  

5.  In the supporting affirmation of the applicant filed on 7 January 2019, he further provided the following grounds:

“(i) The Honourable Judges from the Court were wrong in law in holding that there was no state acquiescence or involvement.

(ii)    The Honourable Judges from the Court also failed to find out the clear details of the current situation of Bangladesh.”

6.  According to the directions made by Master Au-Yeung, Registrar of Civil Appeals on 8 January 2019, the applicant shall lodge with the court his written submissions in support of the Notice of Motion on or before 21 January 2019.  The applicant failed to lodge his written submissions as directed.  Pursuant to Practice Direction 2.1, we are of the view that this application can be processed on paper without any oral hearing.

7.  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.  In our view, the grounds of appeal set out in the Notice of Motion did not constitute viable grounds for granting leave to the Court of Final Appeal.  Regarding the further grounds of appeal set out in the applicant’s affirmation, they were regurgitation of arguments advanced and rejected by this Court.  For the reasons that the court gave in the Judgment, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s order.

8.  None of the matters relied upon by the applicant amount to questions of great, general or public importance.  The applicant has failed to meet the threshold imposed by section 22(1)(b) to enable him to obtain leave to appeal to the Court of Final Appeal.  

9.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

10.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.