RE ARIF MOLLA

CACV 264/2018

[2019] HKCA 437

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 264 OF 2018

(ON APPEAL FROM HCAL NO. 949 OF 2017)

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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 18 January 2019, this Court handed down a judgment dismissing the applicant’s appeal (‘judgment’) against the decision of Deputy High Court Judge Bruno Chan given on 15 June 2018 in which he refused to grant leave to the applicant to apply for judicial review.

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 30 January 2019, for leave to appeal against our judgment to the Court of Final Appeal.  We will deal with this application on paper.

1.4  The applicant stated in his notice of motion that all judgments or orders were made against him.  He stated that if he is to return to Bangladesh he will be killed.  He further stated that the present government will be in power for the next five years.

1.5  The applicant lodged his written submissions on 28 February 2019.  Amongst other things, and in summary, he repeated factual and procedural background information.  He blamed his friend for not filing written submissions for him in his previous application.  He reiterated that he will be killed if refouled.  He complained about findings of fact made by the Director and/or the Board.  He further complained about his trial bundle containing documents in English, and how the Judge was incorrect in his analysis on his credibility.

1.6  Accompanying the applicant’s written submissions on 28 February 2019, he lodged 20 pages of enclosures.  Such enclosures are what appears to be foreign notarized documents which seem to suggest that he cannot return to Bangladesh because the authorities are looking for him for his involvement in an alleged murder case.  By the directions of the Registrar of Civil Appeals dated 4 March 2019, these enclosure evidence will not be considered by the Court of Appeal.  We agree with these directions.  

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 do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of 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 or written submissions.

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 30 January 2019 is dismissed.

CACV 264/2018

[2019] HKCA 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 264 OF 2018

(ON APPEAL FROM HCAL NO. 949 OF 2017)

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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 against the decision of Deputy High Court Judge Bruno Chan given on 15 June 2018 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 11 January 2019 at 9:30 a.m.  The applicant had failed to file any written submission by the time stipulated by the Registrar in the Directions as contained in his letter to the applicant dated 18 September 2018.  The hearing date of the appeal was accordingly vacated according to the terms of the Directions and we will deal with this appeal on paper.

2.  Factual background

2.1  The applicant is a national of Bangladesh who allegedly entered into Hong Kong illegally on 19 July 2013.  On 24 July 2013, the applicant raised his torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by members of rival political party Awami League (‘AL’) and possibly also persecuted by the police for some false charges laid against him by one of the AL leaders known as KH.

2.2  The background facts have been summarized in the decision of the Judge, Form CALL-1, [2018] HKCFI 1322 at [2]-[5].

3.  The Director’s Decision and the Director’s Further Decision

3.1  The Director decided against the applicant’s torture claim on 29 January 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2 The Director decided against the applicant’s right to life claim on 26 May 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered applicant’s rights under Article 2 (right to life) of the Bill of Right (‘BOR 2’).

4.  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board on 11 February 2016.  After a hearing held on 10 October 2017, the Board dismissed the applicant’s appeal on 17 November 2017 (‘the Board’s Decision’).

4.2  The Judge summarized the Board’s findings :

‘ 10. In its decision the Board considered those additional documents produced by the applicant at his appeal hearing but for the detailed reasons stated in paragraphs 52 – 92 of its decision was unable to give them any credence, and also found flaws in the applicant’s evidence that he is not a witness of credit, that as for the allegation of false charges against him the Board found that if indeed they were genuinely brought, it would be impossible for the applicant not to have been arrested all these years when he was in Dhaka or for him to be able to leave Bangladesh in 2013 for Hong Kong, and that if there is still a risk of harm from KH and his AL people, that it would not be unreasonable or too harsh for the applicant as an able-bodied adult to escape that risk by relocation within Bangladesh away from his home district… ”

5.  Decision of the Judge

5.  The grounds relied upon by the applicant for his intended judicial review before the Judge were that the Board breached procedural fairness and that the Board relied on source of news not officially recognized or were hearsay or outdated.  He also complained that the hearing bundle reached him very late in the process and was all in the English language and he had limited comprehending abilities to understand the documents therein.  The Judge decided that these intended grounds were too broad and vague without any particulars as to how they applied to the applicant’s case. The Judge also decided that most of the documents contained in the hearing bundle provided to the applicant were not unfamiliar to the applicant.  The applicant also chose not to give any evidence (or raise this complaint) during the hearing before the Board.

6.  Grounds of appeal

6.  The applicant stated in the Notice of Appeal that :

(1) He will face hardship if he were to return to his home country;

(2) The Board relied on news not officially recognized or is simply hearsay, and cases that are outdated considering the dramatic changes.  The lack of credible source of information has resulted in groundless speculation.

7.  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  In respect of Ground (1), the Board found that the applicant was not a credible witness and did not accept any of his evidence as being true.  Amongst other findings of fact, the Board found that it was extremely unlikely that the applicant who was sought by the police on more than two occasions, could be at large for more than five years, obtained a passport and visa, and at the end left his home country without being stopped by the authorities.  Assessment of credibility of the claim and evaluation of the claimed risks are matters for the Board and the Director as primary decision makers.  Like the Judge, we see no proper basis for disturbing the findings made by the Board on the credibility of the applicant and the veracity of his account.  In the light of the Board’s finding that there were no real risks of the applicant being subjected to the harm as alleged by him, the assertion of hardship has no merit.

7.2  As to Ground (2), it is unclear what news or cases that the applicant was referring to.  In any event, this ground is clearly misplaced.  The Board did not accept the fundamental basis of the applicant’s claim that he would face harm if refouled.  This is a case that stood or fell on its own facts and does not require much consideration of COI.  Further, the cases referred to by the Board remain good law.

7.3  The appeal is accordingly dismissed.