RE ALAM TOWHID

CACV 470/2018

[2019] HKCA 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 470 OF 2018

(ON APPEAL FROM HCAL NO. 25 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.  On 28 February 2019, this Court (Cheung and Au JJA) dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 7 September 2018 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by notice of motion filed on 8 March 2019, for leave to appeal to the Court of Final Appeal.    

4.  The Registrar of Civil Appeals had directed on 11 March 2019 that the notice of motion shall be determined on paper only without an oral hearing unless otherwise directed.  Despite the same directions, the applicant has failed to lodge with the Court his supporting written submissions by 22 March 2019.  We will determine the applicant’s application on paper.

5.  The applicant stated in his notice of motion that the Courts have failed to consider Muslim laws.  He complained that according to Muslim laws, his conversion from Muslim to Christianity is punishable by death.  This is a matter of state acquiescence and the Courts have failed to take this into account.

6.  As we have said many times before, although the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the primary decision maker is still the Board. Determination of the merits of non-refoulement claims is essentially a matter for them, and the Court should not usurp their roles as primary decision makers.  Judicial review is not an avenue for revisiting the assessment of the Board in the hope that the Court may consider the matter afresh even in the absence of any legal error, see: Re Sheikh Iddris[2018] HKCA 2; Re Traore Ali[2018] HKCA 92; Re Masoom Parvez[2018] HKCA 163; and Re Lakhwinder Singh[2018] HKCA 246.

7.  The applicant’s point on his conversion to Christianity being punishable by death was neither argued before the Judge nor in the appeal before this Court.  It is not the practice of the Court of Appeal to grant leave to appeal on new points that were not canvassed in the appeal before it.  Nor 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: Re Bhauya Mohammad Sattar[2019] HKCA 420 at paragraph 9 per Hon Chu JA.

8.  Further, the applicant’s fear of punishment by death according to Muslim law has no bearing on the Board’s important finding that the applicant’s case was not credible when it refused his appeal.  

9.  In any event, the matters stated by the applicant in his notice of motion do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  He 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 Hong Kong Court of Final Appeal Ordinance (Cap. 484).  Nor is there any such question apparent to us from the matters he has raised in his notice of motion.

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

11.  For these reasons, the applicant’s notice of motion filed on 8 March 2019 is dismissed.

CACV 470/2018

[2019] HKCA 241

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 470 OF 2018

(ON APPEAL FROM HCAL NO. 25 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.   This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (‘Judge’) given on 7 September 2018 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1   The applicant is a national of Bangladesh. He first came to Hong Kong in 1999 with the passport of the name of another person.  He overstayed and was repatriated to Bangladesh in May 2001.  In late 2001 he came to Hong Kong again using a passport of his present identity.  For the next several years he travelled between Hong Kong and Bangladesh where he would stay for a few months each time to visit his family.  In 2005 he returned to Bangladesh but on 14 January 2006 he entered Hong Kong again.  He overstayed and raised a torture claim on 27 December 2007 with the Immigration Department after his refugee claim was rejected by the United Nations High Commissioner for Refugees (‘UNHCR’).  In the next few years the applicant was charged and convicted for the offences of breaching condition of stay and taking employment without permission and served times in prison.  Upon his discharge from prison and whilst waiting repatriation, he lodged a non‑refoulement claim for which he completed a Non‑refoulement Claim Form (‘NCF’) on 16 October 2014.

2.2   The basis of the applicant’s claim is that he would be harmed or killed by various fractions of Muslims for converting his religion from Islam to Christianity.

2.3   The background facts have been summarized in the decision of the Judge at [2]-[9].

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

3.1   The Director decided against the applicant’s torture claim on 28 August 2015.  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   By a further decision of the Director of 8 December 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant (‘Director’s Further Decision’).

4)  The Board’s Decision

4.1   The applicant first appealed against the Director’s Decision to the Board.  After two hearings held on 29 March 2017 and 18 April 2017, the Board, after considering the applicant’s claims under all grounds, including BOR 2 risk, dismissed the applicant’s appeal on 28 December 2017 and confirmed both the Director’s Decision and Further Decision (‘the Board’s Decision’).

4.2   The Board found that the applicant’s account of events in Bangladesh was far-fetched and lacking in credibility. It found that it was inherently incredible that the applicant was beaten up every time he volunteered information about his religious faith, especially when seen in contrast with his assertion that he never mentioned the same in Hong Kong until after his arrest.  It found that the applicant by his own admission accepted that some assertions in his non-refoulement claim form were incorrect, that much of his evidence relating to events and matters which were not within his own knowledge or are hearsay.  The Board concluded that his general credibility was damaged and it was unable to attach weight to his evidence. The Board held it was unable to find a real risk that the applicant will suffer ill-treatment if refouled to Bangladesh.

5)  Decision of the Judge

5.   Amongst other things, the Judge held that the grounds as contained in the applicant’s Form 86 and supporting affidavit were all very broad and vague without any particulars as to how they explained the applicant’s case.  The Judge held that he did not accept the applicant’s production of two statements (allegedly from his wife and son in which they mentioned threats to the applicant for converting to Christianity and the son being beaten up by being the son of a Christian) as evidence during the oral hearing before him.  Putting aside the insurmountable issue of authenticity of these two statements, the Judge held that there was no reason why these two statements could not have been produced for assessment before the Director and/or the Board when they appeared to be available in 1995 or 1997.  The Judge held that the Board rejected the applicant’s case for his lack of credibility, and any attempt to challenge the Board’s ruling based on its reliance on Country of Origin Information was futile and pointless, as it was well established that evaluation of evidence was within the provenance of the Director and/or the Board, and the Court would not usurp their role and function.

6)  Grounds of appeal

6.1   The applicant in the notice of appeal stated that his grounds of appeal are contained in the three‑page attachment and exhibits in his affirmation.  The affirmation stated that ‘My life is grave danger in my motherland.  I do not want to go back to my motherland.  In the light of new law, relocation is practically impossible’.  He did not give any particulars or explanation on what was the new law he was referring to.  In the three-page attachment to his affirmation, he repeated his grounds for appeal as those that have been listed in paragraph 15 of the Decision of the Judge.  He exhibited to the affirmation various documents including the decisions below, his non-refoulement claim form and documents relating to his legal aid application.

6.2   The applicant failed to comply with the directions of the Registrar of Civil Appeals on 19 October 2018 requiring him to lodge skeleton arguments 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non‑compliance.

6.3   The hearing on 19 February 2019 was therefore vacated.  We will deal with the appeal on paper on the basis of the materials already filed with the Court.

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 has been shown in the present case.

7.2   Accordingly, the appeal is dismissed.