RE HOSSAIN MD SAZZAD

CACV 100/2019

[2019] HKCA 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 100 OF 2019

(ON APPEAL FROM HCAL 706/2018)

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J U D G M E N T

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

1.  On 17 June 2019, this court (Barma JA and Bharwaney J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the judge”) on 21 February 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from a decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 3 July 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“[The Court of Appeal] refused my claim. I am not satisfy his order. I want to go to the Court of Final Appeal for my correct justice. I am very sorry as I had a big hope to the judge of the Court of Appeal, unfortunately my claim is refused, please give me permission to go to Court of Final Appeal”

4.  In compliance with the directions of the court, the applicant lodged a written submission in support of the application on 16 July 2019.  In the written submission, the applicant repeated the events leading to his non-refoulement claim and submitted that it is unsafe for him to return.  He complained that the judge only asked about legal errors and because he has no knowledge of the law he did not identify any legal error.  He should have been given legal and language assistance.  He asked that his claim be sent to the Director of Immigration for review.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.  

7.  The applicant did not give any ground of appeal in his Notice of Motion.

8.  As for the grounds raised in the skeleton submissions, we note that, hitherto, the applicant has not raised any ground of appeal based on his difficulty in identifying legal errors and the lack of legal and language assistance.  As we have explained before, it is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the hearing before it;[2] nor generally 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.[3]

9.  Further, the bare assertion by the applicant that it is unsafe for him to return is not a valid ground of appeal.

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

11.  For these reasons, the Notice of Motion dated 3 July 2019 is dismissed.