RE BEPARI MASUD

CACV 20/2019

[2019] HKCA 816

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2019

(ON APPEAL FROM HCAL NO. 205 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)   Leave to appeal to Court of Final Appeal

1.1   On 17 May 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2019 in which he refused to grant leave to the applicant to apply for judicial review.

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 dated 23 May 2019, for leave to appeal against our judgment to the Court of Final Appeal.  We will deal with this application on paper.

1.4   The applicant stated in his notice of motion that there was ‘error of law’ in his decision.  The basis of his argument was that he was not afforded an opportunity before the Court of Appeal for an oral hearing.  He stated that he had to submit further evidence at the oral hearing before the Court of Appeal.

1.5   It is trite that there is no absolute right to an oral hearing as the question must depend on the standard of fairness required, the nature of the decision making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representation: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26, as applied in the Court of Appeal in Riaz Yasmeen[2018] HKCA 576 at paras 21-22.

1.6   More importantly, the applicant did not comply with the directions of the Registrar of Civil Appeals of 31 January 2019 by failing to lodge any skeleton submission, see our judgment at paragraph 1.2.  The original hearing before the Court of Appeal was hence vacated.  The absence of an oral hearing for the applicant was due to his own making.

1.7   As for the applicant’s intention to adduce further evidence at the Court of Appeal level (the nature of which he still has not identified), it is trite that room to allow new evidence or new arguments is limited at the appellate stage.  The applicant is required to satisfy the requirements in Ladd  v Marshall [1954] 1 WLR 1489 for adducing new evidence.  For new arguments generally, the appellate courts will not entertain new arguments which have not been canvassed at the Court of First Instance for which leave has not been sought within time: Nupur Mst[2018] HKCA 524 at para 14(3) and (4).

1.8   In any event, none of these complaints of the applicant in his notice of motion raises any grounds of great general or public importance.

2)  Legal principles

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)  Our view

3.1   The matters stated by the applicant in his notice of motion 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.

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

4)  Disposition

4.   For these reasons, the notice of motion dated 23 May 2019 is dismissed.

CACV 20/2019

[2019] HKCA 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2019

(ON APPEAL FROM HCAL NO. 205 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

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2019 in which he 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 31 January 2019 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 7 July 2014.  He completed a non‑refoulement claim form on 16 February 2016.

2.2   The basis of the applicant’s claim is that he is a member of the Bangladesh Nationalist Party (‘BNP’) and he would be harmed or killed by supporters of the rival political party Awami League (‘AL’).

2.3   The background facts have been summarized in the decision of the Judge at [1]-[8].

3)  The Director’s Decision

3.1   The Director decided against the applicant’s torture claim on 1 June 2016.  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   The Director further decided against the applicant’s right to life claim on 13 July 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered the applicant’s rights under Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board on 13 June 2016.  After a hearing held on 3 November 2017, the Board dismissed the applicant’s appeal on 1 February 2018 (‘the Board’s Decision’).

4.2   The Board found that there were inconsistencies in the applicant’s account of threats and assaults from members of the AL, and it was unconvinced that after all these years the AL people would still pursue the applicant.  The applicant was just an ordinary BNP member.

5)  Decision of the Judge

5.   The Judge held that many of the applicant’s complaints against the Board were broad and vague assertions without particulars or specifics or elaborations as to how they applied to his case, or how the Board erred in its decision.   The Judge agreed with the Director and the Board that the applicant’s perceived risk of harm is a localized one.  Internal relocation was possible.

6)  Grounds of appeal

6.   The applicant in the notice of appeal filed on 15 January 2019 repeated his complaint about the risk of harm in returning to his home country, and that his father was also at risk of harm.  He repeated that AL is the ruling party and since he was affiliated to BNP he would be harmed if he returned.

7)  Our view

7.1   The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah[2018] HKCA 14; Re Qadir Sher[2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board[2018] HKCA 152; Re Rizwan alias Rizwan Gulistan[2018] HKCA 162; Re Lakhwinder Singh[2018] HKCA 246 and Re Masoom Parvez[2018] HKCA 163.

7.2   The applicant has provided no viable grounds of appeal against the decision of the Judge. 

7.3   Accordingly, the appeal is dismissed.