RE UDDIN MIHA JALAL

CACV 138/2019

[2020] HKCA 206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 138 OF 2019

(ON APPEAL FROM HCAL 1081/2018)

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RE:

UDDIN MIHA JALAL

Applicant

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Before:  Hon Barma JA, G Lam J and ST Poon J in Court

Date of Judgment:  16 April 2020

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J U D G M E N T

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

1.  On 1 August 2019, this court (Barma JA, G Lam and ST Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) on 15 March 2019 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non‑refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion dated 9 August 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that:

“I would like to inform the Honourable Court that there is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were in favor while rejecting my claim. Actual life occur different situation then what is mentioned in COI information. The Officer and courts prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

4.  The applicant lodged a written submission in support of the application on 23 August 2019.  In the written submission, the applicant referred to a number of cases on high standard of fairness without explaining how they are relevant to his case.

5.  Having considered the applicant’s Notice of Motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the Notice of Motion and written submission.

6.  The matters stated by the applicant in the Notice of Motion and written submission do not constitute grounds for granting leave to appeal 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, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised in the Notice of Motion and written submission.  

7.  The applicant failed to provide sufficient particulars for the grounds raised in the Notice of Motion.  Further, the majority of those grounds are concerned with the Board’s Decision and the decision by the Director but not the judgment of this court.  The applicant failed to explain the relevance of the cases referred to in his submission.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal. 

8.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion dated 9 August 2019 is dismissed.

(Aarif Barma)	(Godfrey Lam)	(ST Poon)
Justice of Appeal	Judge of the Court of First Instance	Judge of the Court of First Instance

The applicant acting in person

CACV 138/2019

[2019] HKCA 815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 138 OF 2019

(ON APPEAL FROM HCAL 1081/2018)

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RE:	UDDIN MIHA JALAL	Applicant

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Before: Hon Barma JA, G Lam and ST Poon JJ in Court

Date of Hearing: 23 July 2019

Date of Judgment: 1 August 2019

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung given on 15 March 2019 refusing leave to the applicantto apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 1 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 15 November 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 4 September 2014 and was arrested by the police on 6 September 2014.  He lodged a non-refoulement claim on 10 September 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [10] to [11] of the CALL-1 Form dated 15 March 2019.

4.  By a Notice of Decision dated 15 November 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 26 March 2018, the Board dismissed the appeal on 1 June 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [87] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board also concluded at [89] that the fear of ill-treatment is unlikely to materialize.  The Board was also satisfied at [55] that state protection would be available for the applicant.

The judge’s decision

7.  The applicant filed a Form 86 on 13 June 2018 which contained the following grounds for judicial review, summarised below:

(1) the Board unlawfully fettered its discretion;

(2) the Board acted in a procedurally unfair manner;

(3) the Board’s Decision was unreasonable or irrational in the public law sense or resulted from procedural errors or unfairness; and

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

8.  In the affirmation in support of the leave application dated 13 June 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1) the applicant was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The applicant said he was confused at the hearing; and

(2) the Board relied on news which was outdated. This lack of credible sources of information led to the erroneous conclusion that it was safe for him to return.

9.  The applicant was absent from the initial oral hearing on 5 December 2018.  However, at a subsequent hearing held on 24 January 2019, the judge accepted his explanation for his absence at the earlier hearing and proceeded to hear his application.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [18] to [22] of the CALL-1 Form:

“18. The applicant appeared before me and he confirmed that he had had a fair hearing before the Adjudicator and he had no complaint about him.

19. I had put the Board’s comments to him and ask him if he had any comments himself. He said that he had no comments.

20. In the circumstances, all the above grounds are unsubstantiated. They do not support his application.

21. I find that the applicant is unable to show that there is any reasonable chance of success for his intended judicial review.

CONCLUSION

22. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review and I dismiss his application.”

Grounds for appeal

11.  In the Notice of Appeal dated 21 March 2019 the applicant advanced the following grounds of appeal:

“the Plaintiff will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  In his skeleton submissions dated 3 June 2019, the applicant referred to a number of cases on high standard of fairness without explaining how they are relevant to his appeal.

Discussion

13.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

14.  As for the cases referred to in the skeleton submissions, the applicant failed to explain how they are relevant to his case.  There is, thus no viable ground of appeal to be found in the skeleton either.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.

(Aarif Barma)	(Godfrey Lam)	(ST Poon)
Justice of Appeal	Judge of the Court of	Judge of the Court of
	First Instance	First Instance

The applicant acting in person