RE MOHAMMAD MONGAL MIA

CACV 531/2019

[2021] HKCA 390

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 531 OF 2019

(ON APPEAL FROM HCAL 983/2017)

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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 7 May 2020, this court (Barma JA, Barnes J and Lisa Wong J) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the judge”) on 18 November 2019 striking out and dismissing his second application for leave 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 the 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 12 May 2020, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The applicant gently did not have enough time to address the bundle.

Rest of the grounds I will submit as soon as possible.”

4.  In the affirmation dated 12 May 2020, the applicant deposed that:

“1.  The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

2.  The [judges] also failed to find out the clear details of the current situation of Bangladesh”

5.  The applicant lodged a written submission in support of the application on 29 June 2020.  In the written submission, the applicant gave a summary of the events leading up to his non-refoulement claim.  He also referred to the Basic Law, the Hong Kong Bill of Rights Ordinance, Cap 383, a number of case law and international treaties without explaining their relevance to the application. The applicant also contended that the Board failed to scrutinize the decision of the Director of Immigration and erroneously adopted a practice of not questioning the Director’s decision.  The Board failed to act fairly and it erred in failing to consider the condition of the applicant’s country of origin.

6.  Having considered the applicant’s Notice of Motion, affirmation 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 documents filed.

7.  The matters stated by the applicant 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.  

8.  As we have explained in [22] – [23] of our judgment, in order to succeed in the appeal before us the applicant needed to address the only basis upon which the judge struck out and dismissed his application for leave for judicial review, being res judicata.  While the applicant has identified a number of grounds for the intended appeal to the Court of Final Appeal, none of those grounds is related to the issue of whether the applicant should be permitted to bring a second application for leave for judicial review. 

9.  Further and in any event, the applicant has failed to provide sufficient particulars for all of those grounds.

10.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

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

12.  For these reasons, the Notice of Motion dated 12 May 2020 is dismissed.