RE ALAM TOWHID

CACV 470/2018

[2019] HKCA 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 470 OF 2018

(ON APPEAL FROM HCAL NO. 25 OF 2018)

______________________

______________________

______________________

D E C I S I O N

______________________

Hon Cheung JA (giving the decision of the Court) :

1.  On 28 February 2019, this Court (Cheung and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 September 2018 in which he refused to grant leave to the applicant to apply for judicial review.

2.  The facts and issues in the appeal, as well as our reasons for dismissing it, are set out in our judgment.  We will not repeat them here.  

3.  The applicant now applies, by notice of motion filed on 8 March 2019, for leave to appeal to the Court of Final Appeal.    

4.  The Registrar of Civil Appeals had directed on 11 March 2019 that the notice of motion shall be determined on paper only without an oral hearing unless otherwise directed.  Despite the same directions, the applicant has failed to lodge with the Court his supporting written submissions by 22 March 2019.  We will determine the applicant’s application on paper.

5.  The applicant stated in his notice of motion that the Courts have failed to consider Muslim laws.  He complained that according to Muslim laws, his conversion from Muslim to Christianity is punishable by death.  This is a matter of state acquiescence and the Courts have failed to take this into account.

6.  As we have said many times before, although the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board. Determination of the merits of non-refoulement claims is essentially a matter for them, and the Court should not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the Board in the hope that the Court may consider the matter afresh even in the absence of any legal error, see: Re Sheikh Iddris [2018] HKCA 2; Re Traore Ali [2018] HKCA 92; Re Masoom Parvez [2018] HKCA 163; and Re Lakhwinder Singh [2018] HKCA 246.

7.  The applicant’s point on his conversion to Christianity being punishable by death was neither argued before the Judge nor in the appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.  Nor is it the practice of the Court of Final Appeal to grant leave on new fact-sensitive points not argued in the Court of Appeal: Re Bhauya Mohammad Sattar [2019] HKCA 420 at paragraph 9 per Hon Chu JA.

8.  Further, the applicant’s fear of punishment by death according to Muslim law has no bearing on the Board’s important finding that the applicant’s case was not credible when it refused his appeal.  

9.  In any event, the matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  He has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of Hong Kong Court of Final Appeal Ordinance (Cap. 484).  Nor is there any such question apparent to us from the matters he has raised in his notice of motion.

10.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

11.  For these reasons, the applicant’s notice of motion filed on 8 March 2019 is dismissed.