RE MOHAMMAD TITU

CACV 355/2018

[2019] HKCA 7

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 355 OF 2018

(ON APPEAL FROM HCAL NO 724 of 2017)

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J U D G M E N T

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

1.  On 15 November 2018, this Court (Chu JA and L Chan J) handed down our judgment[1] (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 18 July 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 23 November 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal. 

3.  Pursuant to the directions given by the Registrar of Civil Appeals, the applicant has lodged a written submission dated 7 December 2018 to support his application.

4.  Having considered the applicant’s notice of motion and written submission, 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.

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 contained the following grounds:

(1)   “Procedural impropriety: Failure to provide sufficient opportunity to clarify certain elements of my claim/ Failure to follow up with pertinent and/or obvious questions.”

(2)   “Procedural impropriety: Failure to conduct sufficient inquiry into the country of origin conditions of my home country.”

(3)   “Irrationality: No, or insufficient basis to conclude that I would not subject to torture and/or CIDTP upon refoulement.”   

7.  In his written submission, the applicant made the following points under the heading of “Arguable Grounds”:

(1)   The two documents he sought to adduce as new evidence at the hearing of the appeal are original.  They prove that he was a member of BNP and had been persecuted, threatened and attacked by members of AL resulting in his family having to fled his home village.

(2)   He could not produce the two documents before because of the country conditions and there was no one to send them to him as his family had disappeared and his wife is paralysed.  His claim is real and genuine and the AL members will kill him if he returns to Bangladesh.

(3)   The Director and the Board failed in their duty to make sufficient enquiries into the country of origin conditions, amounting to contravention of the high standard of fairness.

(4)   The Director and the Board failed to have regard to relevant considerations and had taken into account irrelevant considerations in that:

(a)  The Director made the BOR 2 risk assessment without conducting a screening interview on this.

(b)  The Board did not hold an oral hearing on the appeal against the Director’s BOR 2 determination.

(c)  The Director and the Board did not consider the BOR 2 provision which protects the inherent right to life and the right not to be arbitrarily deprived of one’s life.

(5)   Failure to consider the concept of extended acquiescence.    

8.  The grounds set out in the notice of motion and the points made in the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Firstly, the applicant has failed to identify any question of great general or public importance, as required by section 22(1)(b).  What were advanced by the applicant only relate to the circumstances of his claim.  Secondly, the grounds stated in the notice of motion and the third and fourth points made in the written submission are mere repetitions of the grounds of appeal and arguments made in the hearing.  For the reasons given in the Judgment at [17] to [20], we have concluded that they are unarguable.  In respect of the two documents, even if we were to accept that the applicant could not, with reasonable diligence, produce them to the Director or the Board or to the Judge, for reasons contained in [14] of the Judgment, the second and third requirements for adducing new evidence as laid down in Ladd v Marshall [1954] EWCA Civ 1 are still not met.  The two documents simply have no impact on the BOR 2 assessment by the Director or the Board, and have no influence on the outcome of the case.      

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

10.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  Accordingly, we dismiss the Notice of Motion.