RE MD ANJUR ALI

CACV 330/2018

[2019] HKCA 114

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 330 OF 2018

(ON APPEAL FROM HCAL NO. 616 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] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 17 July 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 3 December 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.  The applicant had also lodged a written submission in support of his application. 

3.  Having considered the applicant’s notice of motion, 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.

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.  The Notice of Motion stated that the applicant’s life is not safe in Bangladesh as supporters of both the Bangladesh Nationalist Party and the Awami League were after him because he has switched his allegiance to Bikolopo Dhara Bangladesh.  A 13-page document was attached to the Notice of Motion, which contained the facts of the applicant’s claim and a narration of the situation in Bangladesh, including its judicial system, police force, public service, land and tax administration and civil society. 

6.  The written submission gave an account of the procedural history leading to the appeal to this Court and set out some country of origin information (“COI”) about Bangladesh.  It argued in considerable details the grounds for his intended judicial review of the Board’s decision, complained that the Judge failed to apply the necessary scrutiny to the reasoning of the Board and to discharge its duty to comprehensively consider the lawfulness or fairness of the decision-making process, and asked this Court to grant leave for judicial review.

7.  All the matters stated in the Notice of Motion and the written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  

8.  Firstly, the applicant has not identified any question of great general or public importance, as required by section 22(1)(b).  The matters contained in the Notice of Motion and written submission advanced by the applicant all relate to the circumstances of his case. Secondly, the claim that supporters of Awami League are after the applicant is a new assertion that was not part of the applicant’s case before the Director, the Board, the Judge or in his appeal before this Court.  It is not this Court’s practice to allow a new case and/or new ground which is fact-sensitive to be argued in an application for leave to appeal to the Court of Final Appeal.  Thirdly, the COI contained in the document attached to the Notice of Motion and in the written submission are new evidence that was not before the Judge.  It is not permissible for the applicant to rely on new facts and evidence in an application for leave to appeal to the Court of Final Appeal.  Fourthly, for the reasons given in our judgment, the complaint that the Judge failed to scrutinise and properly review the Board’s decision is unarguable.    

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.