RE ABDUR RAHMAN

CACV 499/2018

[2019] HKCA 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 499 OF 2018

(ON APPEAL FROM HCAL NO. 1108 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) :

1.1   On 17 May 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Campbell-Moffat J given on 28 September 2018 in which she 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 and affirmation dated 21 May 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 the applicant is saying that it is not true that his claim is without substance; he did not complain about the poor performance of his duty lawyer because he was afraid to be picked out; he reiterated that he did not have time to address the bundles before the Board.  All of these complaints lacked any meaningful particulars.

1.5   The applicant’s affirmation exhibited a copy of the Court’s judgment.  It complained that the judges were wrong in law to hold that there was no state acquiescence and they failed to account for the current situation in Bangladesh.  

1.6   The applicant’s written submission also lacked specificity and relevance.  Apart from the part dealing with the applicant’s background the written submission is a pro forma document that is commonly used in this type of application.  It sets out broad and general terms, legal principles, concepts and statutory provision for non‑refoulement or constitutional law cases.  They are simply legal propositions without more.

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.

3.1   The matters stated by the applicant in his notice of motion, affirmation 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 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, affirmation and 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.   For these reasons, the notice of motion dated 21 May 2019 is dismissed.

CACV 499/2018

[2019] HKCA 532

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 499 OF 2018

(ON APPEAL FROM HCAL NO. 1108 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 by the applicant against the decision of Campbell-Moffat J given on 28 September 2018 in which she refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2   The applicant did not comply with the directions of the Registrar of Civil Appeals of 20 November 2018 and did not lodge any skeleton submission.  The original hearing fixed for 7 May 2019 was hence vacated, and the applicant’s appeal is now being considered on paper.

2)  Factual background

2.1   The applicant is a national of Bangladesh. He entered Hong Kong illegally on 5 April 2008.  He raised a non‑refoulement claim on 26 April 2008.

2.2   The basis of the applicant’s claim is that he is an active member of the Bangladesh Nationalist Party and he would be harmed or killed by Akkel, a member of the rival Awami League.

2.3   The background facts have been summarized in the decision of the Judge at [4]-[6].

3)  The Director’s Decision

3. The Director decided against the applicant’s torture claim on 21 April 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to 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 on 4 May 2017.  After a hearing held on 22 September 2017, the Board dismissed the applicant’s appeal on 1 December 2017 (‘the Board’s Decision’).

4.2   The Board found that the applicant’s animosity with Akkel was mainly personal and quite apart from their respective political affiliations.  The Board was not convinced by the applicant’s submissions that the local police supported the Awami League.

5)  Decision of the Judge

5.   The Judge held that according to the evidence filed by the applicant, there were no grounds for judicial review.  She had, nevertheless, considered the papers carefully, and had not found any error of law or procedure throughout.

6)  Grounds of appeal

6.   The applicant in the notice of appeal filed on 4 October 2018 referred to his supporting affirmation pages for his grounds of appeal.  In his supporting affirmation’s cover page, the applicant complained that the Judge was wrong in law in holding there was no state acquiescence.  He complained that the Judge did not provide detailed reasons.  He referred to an exhibit to his supporting affirmation, the contents of which were all complaints not against the Judge, but against the Board.

7)  Our view

7.1   It is trite that in an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in light of the grounds advanced by the applicant.  If no viable ground is put forward, the appeal should be dismissed: Re Litoun Mounsy[2018] HKCA 537 at [11]; Re Tutul[2018] HKCA 552 at [15]; and Re Islam Rafiqul[2018] HKCA 570 at [14].

7.2   The applicant has provided no viable grounds of appeal against the decision of the Judge.  The alleged grounds in the applicant’s notice of appeal are bare allegations.  There is no merit in the applicant’s appeal. 

7.3   Accordingly, the appeal is dismissed.