RE KHALIL

CACV 112/2019

[2019] HKCA 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 112 OF 2019

(ON APPEAL FROM HCAL NO. 1259 OF 2018)

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D E C I S I O N

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

1)  Leave to appeal to Court of Final Appeal

1.1   On 2 July 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung given on 25 February 2019 in which he refused to grant leave to the applicant to apply for judicial review (‘Decision of the Judge’).

1.2   The facts and issues in the appeal before the Court of Appeal, as well as the Court’s reasons for dismissing it, are set out in our judgment.  We will not repeat them here.

1.3   The applicant now applies, by a notice of motion dated 4 July 2019, for leave to appeal against our judgment to the Court of Final Appeal.

1.4   The content of the applicant’s notice of motion is generally undecipherable.  Trying our best, it seems that the applicant is stating that he is seeking non-refoulement as he believes his life is in danger.  He claims to belong to the Awami League and members of the Bangladesh Nationalist Party threatened him.  All of these complaints lacked any meaningful particulars.

1.5   In his written submission the applicant produced a one-page exhibit and stated that he will explain during the oral hearing before the Court.  The one-page exhibit purports to be written in Awami League letterhead.  It is written in English and confirms his alliance to the Awami League.  It further confirmed that the applicant has ‘some political problem’.  

1.6   The applicant did not explain why he only chose to produce the letter now.  In any event, the Torture Claims Appeal Board had assessed the applicant’s case on the basis that he is a member of the Awami League.  This letter does not add much to his claim.

2)  Legal principles

2.   Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) (‘HKCFAO’) leave to appeal to the Court of Final Appeal will only be granted if the question to be determined involves great general or public importance or otherwise ought to be determined by the Court of Final Appeal.

3)  Our view

3.1   The matters stated by the applicant in his notice of motion and written submissions including his exhibit do not constitute grounds for granting leave 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 in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion and written submissions with exhibit.

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

4)  Disposition

4.   For these reasons, the notice of motion dated 4 July 2019 is dismissed.

CACV 112/2019

[2019] HKCA 745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 112 OF 2019

(ON APPEAL FROM HCAL NO. 1259 OF 2018)

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J U D G M E N T

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

1)  The appeal

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 25 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2   This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 1 April 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1   The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 5 May 2008 and was arrested shortly thereafter.  He first lodged a torture claim and later a non‑refoulement claim on 14 September 2016.  The two claims were consolidated for determination.

2.2   The basis of the applicant’s claim is that he would be harmed or killed by members of the Bangladesh Nationalist Party (‘BNP’).  He was a supporter of the rival Awami League (‘AL’).

2.3   The background facts have been summarized in the decision of the Judge at [4].

3)  The Director’s Decision

3.   The Director decided against the applicant’s claim on 11 November 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 20 September 2017, the Board dismissed the applicant’s appeal on 19 June 2018 (‘the Board’s Decision’).

4.2   The Board found the applicant’s evidence not credible.  It was not persuaded by the applicant’s explanation of discrepancies in his evidence.  It found the applicant had no factual basis for his claims.

5)  Decision of the Judge

5.   The Judge addressed the applicant’s grounds for judicial review.  He held that the Board was entitled to make finding of facts on the applicant’s case.  There was no reasonable prospect of success in the applicant’s claim. 

6)  Grounds of appeal

6.   The applicant in the notice of appeal stated that he was not satisfied with the decision of the Judge because he still has ‘life problems’ in his country.  He believed that if he was to return to his home country he would be harmed or killed. 

7)  Our view

7.1   We are of the view that the applicant’s appeal is without merits.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors of law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39].  None of these errors exists in this case.

7.2   Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person