RE RAHAMAN MOHAMMAD FAZLUR

CACV 322/2018

[2019] HKCA 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 322 OF 2018

(ON APPEAL FROM HCAL NO. 622 OF 2017)

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J U D G M E N T

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

1.  By a judgment dated 21 December 2018 ([2018] HKCA 815), this Court (Hon Yeung Acting CJHC, Yuen and Pang JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Woodcock dated 10 July 2018 refusing to grant leave to him to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board dated 8 September 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 2 January 2019, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

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

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

(ii)  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

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

5.  In the applicant’s supporting affirmation filed on 2 January 2019, he further advanced the following grounds of appeal:

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

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

6.  In compliance with the direction given by Master Au-Yeung on 3 January 2019, the applicant lodged his written submissions on 4 February 2019.  In his written submissions, the applicant reiterated the background of his case and cited some general legal principles and case authorities in respect of non-refoulement protection claim without relating them to his own case.

7.  We have duly considered the applicant’s notice of motion, supporting affirmation and his written submissions.  Pursuant to paragraph 3 of Practice Direction 2.1, this application is processed on papers without any oral hearing.

8.  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.  Here, the grounds and complaints forward by the applicant in the notice of motion, supporting affirmation and written submissions are vague and general and do not constitute viable grounds for granting leave to appeal to the Court of Final Appeal.   The applicant did not have reasonably arguable basis to challenge the Judge’s findings. 

9.  For the reasons that we gave in our judgment of  21 December 2018, 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 in his written submissions involve an arguable point or a question of great general or public importance.  Nor do we see any basis for granting leave on the “or 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.

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