RE ABU SAMA SALIM

CACV 93/2019

[2019] HKCA 932

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 93 OF 2019

(ON APPEAL FROM HCAL NO. 705 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 21 June 2019, this Court handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 February 2019 in which he 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 8 July 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 claims are 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 copies of the Court’s judgment and order.  He complained that the judges were wrong in law to hold that there was no state acquiescence, and that we failed to take account of the current situation in Bangladesh.  

1.6   The applicant failed to lodge his written submissions in accordance with the directions of the Registrar of Civil Appeals dated 9 July 2019 or at all.

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 and affirmation 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 and affirmation.

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 8 July 2019 is dismissed.

CACV 93/2019

[2019] HKCA 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 93 OF 2019

(ON APPEAL FROM HCAL NO. 705 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 Josiah Lam given on 21 February 2019 [2019] HKCFI 374 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.

2)  Factual background

2.1  The applicant is a national of Bangladesh.  On 12 April 2008, he entered Hong Kong illegally from the Mainland. He was arrested by the Police on 19 July 2008.  On 26 July 2008, he raised a non-refoulement claim.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by members of the Communist Party (‘CP’) because he refused to pay them money or to join them.  He was a member of a party called the Chhatra Shibir (‘CS’) whose relationship with the CP was always strained.

2.3  The background facts have been summarized in the decision of the Judge at [1]-[11].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 3 November 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) (‘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 and appeared at the hearing before the Board on 7 February 2018.  The Board dismissed the applicant’s appeal on 3 April 2018 (‘the Board’s Decision’).

4.2  The Board perused the available evidence, and found that the applicant’s torture claim to be incredible and untrue.  The Board found that the applicant’s knowledge of CS scanty and even wrong in some places despite his allegation of being a promoted member and having served the party for years.  The Board found that his initial letters to the Director stated Awami League (‘AL’) threats only, with no mention of his involvement with CS.  The Board found this was his attempt to tailor his case to the changing situation in Bangladesh.

5)  Decision of the Judge

5.  The Judge assessed the applicant’s application for leave for judicial review.  He stated the legal position that 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.  He found that the applicant was provided with legal assistance in both stages of the two‑tier screening process.  The Judge found there was no evidence to suggest that the Board failed to consider updated or relevant country of origin information.  He found that there was no need for the Board to consider issues of state acquiescence as the Board did not accept the applicant’s case on credibility.

6)  Grounds of appeal

6.1  The applicant in the notice of appeal filed on 25 February 2019 referred to his grounds of appeal in his supporting affirmation which stated that the Judge was wrong in holding there was no state acquiescence.  He complained that the Judge failed to give detailed reasons.

6.2  The applicant’s skeleton submissions lodged on 8 May 2019 submitted that a high standard of fairness is required in the determination but without giving elaboration of how such standard was not achieved in the present case.  He accused the Board of approaching the matter by simply trying to see if there is fault with the Director’s Decision.  He stated that the decision maker is under a duty to provide minimum standards of procedural fairness.  None of these submissions are accurate complaints against the decision of the Judge.

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  The Judge explained at [37] that the Board did not need to consider the issue of state acquiescence because it did not accept the applicant’s claim as true.  And contrary to the suggestion made in the first ground of appeal, the Judge made no finding as to the presence or absence of state acquiescence.  There is no evidence that the Judge failed to give detailed reasons. 

7.2  It is trite that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).  See: Re Qadir Sher[2018] HKCA 160; Re Rizwan alias Rizwan Gulistan[2018] HKCA 162; Re Ali Haider[2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair[2018] HKCA 461 and Re Muhammad Usman[2018] HKCA 474. 

7.3  Accordingly, the appeal is dismissed.