RE ISLAM MAHIDUL

CACV 441/2020

[2021] HKCA 1343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 441 OF 2020

(ON APPEAL FROM HCAL NO. 2082 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)  :

I.  Leave to appeal to Court of Final Appeal

1.  On 23 April 2021, this Court (Cheung JA, G Lam J (as he then was)  and S T Poon J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 11 August 2020 in which he refused to grant leave to the applicant to apply for judicial review.

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

3.  The applicant now applies, by a notice of motion filed on 29 April 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant stated in his notice of motion that :

‘ I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwheming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.’

4.  The applicant also lodged his written submissions on 24 May 2021.  He first gave factual information about his case. He then stated various non-refoulement legal principles and relevant statutory provision without detailing how those provisions related to the particular circumstances of his case.

II.  Legal principles

5.  Under section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance (‘the Ordinance’)  (Cap. 484)  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.

III.  Our view

6.  The matters stated by the applicant in his notice of motion and written submissions do not constitute grounds for granting leave to the Court of Final Appeal.  The applicant has failed to identify any question of general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b)  of the Ordinance.  Nor is there any such question apparent to us from the matters he has raised in his notice of motion and written submissions. 

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

IV.  Disposition

8.  For these reasons, the notice of motion dated 29 April 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 441/2020

[2021] HKCA 550

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 441 OF 2020

(ON APPEAL FROM HCAL NO. 2082 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 Bruno Chan of 11 August 2020 in which he refused to grant leave to him to apply for judicial review.

2)  Factual background

2.1.  The applicant is a national of Bangladesh.  On 8 October 2015 he entered Hong Kong by boat.  He raised a non-refoulement claim on 14 October 2015.

2.2.  The basis of the applicant’s claim is that he would be harmed or killed by Mamun as a result of a fishing dispute.  Further he would be harmed or killed by members of the Awami League because he was with the rival Bangladesh National Party.

2.3.  The background facts have been summarized in the decision of the Judge at [1]-[6].

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 10 August 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk, Bill of Rights Article 2 (right to life) risk 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 against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 24 August 2017.  After two hearings held on 30 May 2018 (adjourned) and 6 June 2018, the Board dismissed the applicant’s appeal on 7 September 2018 (‘the Board’s Decision’).

4.2.  The Board found the applicant’s claim to be incredible.  The evidence the applicant provided during the Board hearing was inconsistent with the evidence he provided on paper.  Some of the evidence defied logic.  The applicant failed to prove his case on all applicable grounds.

5)  Decision of the Judge

5.1.  The applicant made a number of complaints in his Form 86 before the Judge.  They include complaints against the Board for misdirection in law, procedural impropriety to carry out sufficient country of origin research, irrationality in failing to place proper weight on favourable evidence, failure to analyse state protection, and lack of representation.  

5.2.  The Judge held that the applicant provided broad and vague assertions containing several pages of key words and phrases but without any particulars or specifics as to how they applied to his case.  The Judge further held that regarding the applicant’s complaint about the hearing bundle being provided to him late, even if it was true, they were documents that the applicant was familiar with since the beginning of these proceedings and accordingly nothing was amiss.  The applicant’s claim was rejected by the Board for adverse finding on his credibility.  

6)  Grounds of appeal

6.1.  The applicant in the notice of appeal requested that his grounds of appeal be referred to in his supporting affirmation.  In his supporting affirmation, he stated that the Deputy Judge was wrong in holding there was no state acquiescence and the Deputy Judge failed to provide detailed reasons.

6.2.  In his written submissions, the applicant referred to general legal principles and authorities on non-refoulement claim without specifying how they related to his case.

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.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu[2018] HKCA 451 at [38] and [39]. 

7.2.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.