CACV 467/2018
[2019] HKCA 244
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 467 OF 2018
(ON APPEAL FROM HCAL NO 1078 of 2017)
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| Before: | Hon Chu JA, M Poon and L Wong JJ in Court |
| Date of Hearing: | 25 February 2019 |
| Date of Judgment: | 4 March 2019 |
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JUDGMENT
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Hon M Poon J (giving the Judgment of the Court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 14 September 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Non‑refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 19 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 7 July 2016 and 6 June 2017 rejecting his non‑refoulement claim.
2. The applicant is a Bangladeshi national. He claimed to have entered Hong Kong illegally on 7 July 2014 and was arrested by police. On 12 July 2014 he lodged a non‑refoulement claim.
3. The personal background and the basis of the applicant’s claim have been set out in full in the decisions of the Director and of the Board. Briefly, the applicant claimed that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) due to his past affiliation with the Bangladesh Nationalist Party (“BNP”). He claimed to have been assaulted and threatened by people whom he believed to be AL members. He said that his report to police was rejected. Fearing for his safety, he moved to his relatives’ home in Benapol, Barishal and Dhaka and departed Bangladesh for Hong Kong via China on 6 July 2014.
4. The Director assessed the applicant’s claim on all applicable grounds namely, the torture risk[1], the BOR 3 risk[2], the persecution risk[3] and the BOR 2 risk[4]. His claim was rejected by the Director and his appeal was dismissed by the Board.
5. The applicant filed his Form 86 on 14 December 2017 seeking leave to apply for judicial review of the decision the Board. An oral hearing was conducted and the applicant appeared in person before the Judge. The Judge having considered the grounds for judicial review refused to grant leave to apply for judicial review for the reasons encapsulated in [11] to [14] of the Form CALL‑1 dated 14 September 2018[5]:
“11. These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on the irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
12. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board with the majority of the documents in English and without the assistance of any interpreter there was simply insufficient time for him to prepare for his appeal.
13. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had earlier already been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at the appeal hearing before the Board he was assisted by an interpreter but he never raise any issue with the hearing bundle or requested the adjudicator for further time or adjournment to enable him to better prepare for his appeal. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.
14. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.”
6. The applicant filed a Notice of Appeal on 20 September 2018, stating the following 2 grounds:
“(1) The Judge was wrong in law in holding that there was no state acquiescence of involvement.
(2) The Judge failed to provide detailed reason in support of her decision.”
7. The applicant has attached with the Notice of Appeal Exhibit A which is largely identical to his affirmation in support of his application for leave to apply for judicial review to explain his present application. In his written submission lodged on 30 January 2019, the applicant complained that the Board did not exercise high standard of fairness and should have carried out research and inquiry into the country of origin’s conditions. At the hearing before us, he adopted those grounds and his written submission and had nothing to add.
Discussion
8. State acquiescence or involvement is not among the judge’s reasons for dismissing the application (see paragraph 6), so ground 1 is simply misconceived.
9. As to the second ground, the Judge gave detail reasons for dismissing the leave application at [11]‑[14] of the Form CALL‑1. As noted by the Judge, the applicant failed to give particulars of the grounds for judicial review put forward by him. The Judge has clearly given sufficient reasons after considering all the available material.
10. The matters raised in the applicant’s skeleton are apparently directed at the Board and the Director but not the Judge. This court has repeatedly emphasised that The Court of Appeal focuses on the decision of the Judge and would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the court of was otherwise plainly wrong, see ReShrestha Santosh Kumar, [2018] HKCA 583 at [17]. Hence, regurgitation of arguments advanced and rejected by the Judge serves no purpose in advancing this appeal.
11. We see no proper basis for interfering with the Judge’s reasons and rejection of the applicant’s grounds for judicial review.
12. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Carlye Chu) | (Maggie Poon) | (Lisa Wong) |
Justice of Appeal
| Judge of
Court of First Instance | Judge of
Court of First Instance |
The applicant appeared in person.
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance.
[5][2018] HKCFI 1340.