RE BHUIYAN JAHIRUL ISLAM

CACV 141/2019

[2019] HKCA 1455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 141 OF 2019

(ON APPEAL FROM HCAL NO 1580 OF 2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

Hon Li J (giving the Judgment of the Court):

1.  On 10 September 2019, this court (Barma JA, Li and Lisa Wong JJ) dismissed the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the judge”) refusing leave to the applicant to apply for judicial review[1]. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”)[2]. The Board had dismissed his appeal from the decision of the Director of Immigration. The Director rejected his non‑refoulement claim on 8 February 2017.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[3]  We will not repeat them here.

Statutory threshold for leave to appeal to the CFA

3.  Under section 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, as the case may be, the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

The Applicant’s grounds in support of leave to appeal to CFA

4.  The applicant applied, by a notice of motion dated 23 September 2019, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that (sic):

“ On 10 September 2019, the Honourable Judges from [the Court of Appeal] dismissed my judicial review but total community of tortured people of my country will loss there strength. I understand I will get a good result from the Court of Final Appeal.

In my Court of Appeal I wrote many cause but the Honourable Judges of the appeal board did not consider my points.

I wish the Court of Final Appeal for the great benefit of tortured people will give me good decision.”

5.  The applicant lodged a written submission in support of the application on 8 October 2019.  In the written submission, the applicant reiterated the matters raised in the Notice of Motion and explained why it is unsafe for him to return.  He also referred to some newspaper articles in Bangladesh on 7 October 2019 about the killing of an Awami League worker for suspected connection with the opposition party as follows (sic): -

“ … I had a big problem about politics. My enemy were very rich and powerfull. Actually they were related with Awami League. Awami League is current ruling political party. That means government force me to fled from Bangladesh. If I did not fled I could not alive. Police and Awami League worker killed me… I am the representative of oppressed people of Bangladesh. If I lose my case total oppressed people lose their mental power which is very important for us to alive… I request all to read 7.10.2019 date all newspaper of Bangladesh. In a university Awami League worker killed another Awami League worker as they think the poor boy have relation with opposition. But I was worker of BNP. So I have big problem. They will kill me any way.”

6.  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 application on the basis of the documents filed.

Discussion

7.  The matters stated by the applicant 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.

8.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review.  Further, the applicant has not taken any application to adduce the newspaper articles as evidence or provide a copy of those articles to this court.  In any event, it is not the practice of this court to allow new evidence at this stage without any good reason.  We would therefore attach no weight to what the applicant represented to be the effect of the articles.

9.  The applicant has failed to identify any error in our judgment.  In our view, these grounds are not reasonably arguable before the Court of Final Appeal.  We also do not see any basis for granting leave on the “or otherwise” limb under section 22(1)(b).

10.  For these reasons, the Notice of Motion dated 23 September 2019 is dismissed.

CACV 141/2019

[2019] HKCA 1034

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 141 OF 2019

(ON APPEAL FROM HCAL NO 1580 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Li J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung dated 14 March 2019. The Judge refused leave for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board dated 13 July 2018. The Board dismissed the applicant’s appeal against the decision of the Director of Immigration rejecting the applicant’s non-refoulement claim on 8 February 2017.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 21 December 2015 and was permitted to remain until 4 January 2016.  He surrendered to the authorities and lodged a non-refoulement claim on 4 February 2016.

3.  The applicant’s claim was based on attacks on him and his family by members of the Awami League, an opposing political party.  The details of the applicant’s claim have been summarised by the Judge at [3] to [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 8 February 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered BOR 2 risk^[1], BOR 3 risk^[2], persecution risk^[3], and torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 24 April 2018, the Board dismissed the appeal on 13 July 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [16] - [22] of its Decision, the Board held that the applicant failed to co-operate during the hearing.  There were clear discrepancies concerning his date of joining and his position in the Bangladesh Nationalist Party (“BNP”).  The Board attached no credence at all to the applicant’s claim that he had been a member of the BNP and that he had been attacked by the Awami League. 

The Judge’s decision

6.  The applicant filed a Form 86 on 9 August 2018 which contained no ground for seeking relief.  In the affirmation in support filed on the same day, the applicant only repeated the events leading to his claim without giving any ground for judicial review.

7.  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 leave for judicial review.  The Judge gave reasons at [12] to [17] of the CALL-1 Form:

“12. In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had considered his appeal and made its Decision.

13. Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14. For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15. The applicant appeared before me. He confirmed the following:

a. he had no complaint against the Immigration officer; and

b. he had no complaint against the Adjudicator.

16. The applicant fails to show that he had a reasonable chance of success in his proposed judicial review.

Conclusion

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

Grounds for appeal

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

“The Honourable Deputy High Court Judge was wrong in law in holding that there was no big problem and he failed to provide detailed reasons”

9.  In his skeleton submission dated 9 May 2019, the applicant repeated the events leading to his claim.  He submitted that the Bangladeshi police will not help him and that he wanted to stay in Hong Kong or be sent to any other place except Bangladesh. He claimed to have no knowledge about the law.

10.  We heard the appeal on 20 August 2019.  The applicant told this court that his family was attacked recently on 15 August 2019.  His life would be endangered if he was sent back to Bangladesh.

Discussion

11.  In the Notice of Appeal, the applicant stated that the Judge erred in law in holding that there was no “big problem”.  The material parts of the CALL-1 Form has been set out in paragraph 7 above.  The Judge did not hold that “there was no ‘big problem’”.  He merely noted that the applicant had confirmed to him that he had no complaint against the Board.  This ground is therefore without merit.

12.  The applicant also complained that the Judge failed to give detailed reasons.  In the Call-1 Form, the Judge explained that there was no exceptional circumstance to justify the application for leave for judicial review of the Director’s decision.  As for the Board’s decision, the Judge noted that the applicant had no complaint against the Adjudicator.  In fact, the applicant did not set out any ground in support of the leave application.  In the circumstances, we conclude that the Judge had given sufficient reasons and this ground of appeal fails.

13.  In his written submissions, the applicant claimed that it is not safe for him to return and that the Bangladeshi police will not give him any protection.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground for judicial review.  In any event, this is not a ground he relied on in the court below and he has not given any good reason why he should be allowed to rely on this ground on appeal.

14.  During the hearing before this court on 20 August 2019, the applicant also mentioned that his family was attacked recently on 15 August 2019.  This incident happened more than three and a half years after he left Bangladesh.  It is not part of the evidence supporting the original claim.  Nor is it even suggested that such alleged recent attack on the applicant’s family was related to the matters underlying the non-refoulement claim. It is not appropriate for this Court to comment any further.

15.  There is no merit in the appeal. We dismiss the appeal accordingly.

The applicant acting in person