RE SHAMSUL MOHAMMAD

CACV 466/2020

[2021] HKCA 862

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466 OF 2020

(ON APPEAL FROM HCAL NO 723 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.  On 26 April 2021, the applicant filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Coleman J) judgment of 9 April 2021 (“the Judgment”) [2021] HKCA 484.  In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 7 September 2020, refusing him leave to apply for judicial review.

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.  After reviewing the Notice of Motion, we see no reason to deviate from the usual practice to consider this application on paper pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA 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 CFA for decision.

4.  In his Notice of Motion, the applicant raised the following grounds of appeal:

“I Shamsul Mohammed My life is still in Danger My home Country, I was returned to Bangladesh, would be harmed and must be killed by my enemy parental uncle and other members of Awami League (AL). I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL information and my previous facts which were in favor while rejecting my claims. Actual life occur different situation then what is mentioned in COL information. The Officer and course perfect to ignore the overwhelming of the evidence of this violence towards minorities Searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable. Because Awami League until is power party.” [sic]

5.  He further stated that he was appealing against the decisions of the Director of Immigration, the Torture Claims Appeal Board (“the Board”) and the courts because they failed to take into account many issues.  He then repeated his personal background and his claim and asked this Court to grant him leave.

6.  In his written submissions of 10 May 2021 filed pursuant to the Court’s directions, the applicant advanced several grounds on procedural impropriety / unfairness and irrationality against the Board[1].  The only complaint against the Judgment was that the Court did not consider the current situation of widespread pandemic, which prevented him from collecting the documents in support of his appeal[2]. Further, he submitted that the matters involved in this appeal are of significant public importance with regards to the standard and approach adopted in the assessment of evidence and credibility of non-refoulement claims[3].

7.  In our view, the applicant’s application is totally without merit.  The arguments in his Notice of Motion and written submissions are effectively those advanced before but rejected by us in the Judgment (see [13] and [21] - [23]). He simply fails to pinpoint any specific errors in the Judgment.  Further, insofar as his alleged lack of chance to collect supporting documents is concerned, the applicant has failed to even identify what those documents are.  This is clearly not a viable ground of appeal.  In addition, as mentioned in the Judgment, the principles regarding the assessment of evidence and credibility of non-refoument claims are well-settled and the task is within the province of the decision makers.  The applicant’s claimed issue of public importance is therefore misplaced.

8.  In the circumstances and in any event, we also do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

9.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicant’s Notice of Motion.