RE HOSSAIN ABUL

CACV 175/2020

[2021] HKCA 238

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 175 OF 2020

(ON APPEAL FROM HCAL NO. 1417 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 20 November 2020, this Court (Cheung and Chu JJA) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 June 2020 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 dated 3 December 2020, for leave to appeal against our judgment to the Court of Final Appeal.

1.4.  The applicant stated in his notice of motion that our judgment had ‘some incorrect informations’.  He stated that we did not verify all the matters and relied on hearsay evidence.  He stated that he felt his life is threatened.

1.5.  The notice of motion annexed six grounds of application which can be summarized as :

(1)  Non application of the principle of irrationality;

(2)  The Judge viewed his matter lightly without regard to high standards of fairness;

(3)  The decision on refoulement has significant effect on his torture claim;

(4)  He has severe problem in his home country;

(5)  The decision was unreasonable; and

(6)  There was no procedural fairness.  The Director and the Board were required to give reasons for their decisions.

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.  They lacked particulars and 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 3 December 2020 is dismissed.

CACV 175/2020

[2020] HKCA 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 175 OF 2020

(ON APPEAL FROM HCAL NO. 1417 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 2 June 2020.

1.2  This appeal was scheduled to be heard on 16 November 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 29 July 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by certain local supporters of the Awami League for failing to pay extortion money.  The applicant claimed to be a general secretary of the rival political party in his district.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [4] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 8 August 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 30 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 June 2018.

4.2  The Board found that material allegations of the applicant were not supported by objective evidence.  There was no evidence that the applicant was a member of the Bangladesh Nationalist Party and even if there were he was only a grass-roots level member or supporter.  It was found that 12 to 14 people did approach the applicant’s restaurant to extort money, but it cannot be found that they made killing threats to the applicant, nor that they had any connection with the Awami League.  There was no evidence that the Awami League was looking for the applicant actively.  It was not accepted that even at the time of the Board’s hearing the Awami League was still looking for the applicant after three years.  There was no evidence that the applicant suffered any physical or mental injuries of the requisite severity from its members.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with supporting affirmation before the Judge.

5.2  The Judge did not accept the applicant’s bare claims without particulars. He held that finding of facts was within the province of the Director and the Board.  As the applicant did not show any prospect of success, he refused to give leave to apply for judicial review.

6)  Grounds of appeal

6.  The applicant in his notice of appeal stated that the Board relied on source of information which was not officially recognized or simply hearsay and it relied on cases which were outdated.  Hence the decision was based on speculations.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(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 their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)  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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.

Applicant, unrepresented, acting in person