RE MUNSHI DALOWAR

CACV 383/2021

[2022] HKCA 1691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2021

(ON APPEAL FROM HCAL NO. 2217 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.  On 14 April 2022 this Court (Cheung and Chow JJA) handed down our judgment ([2022] HKCA 525]) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 August 2021 refusing his application for leave to apply for judicial review in respect of his non‑refoulement claim (‘Judgment’).

2.  On 2 June 2022, the applicant filed a notice of motion and affirmation applying for leave to appeal this Court’s order to the Court of Final Appeal out of time.  He has annexed to his notice of motion 3 pages in supplement.  The applicant has not lodged any written submissions.

3.  Having considered the applicant’s documents, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have, therefore, proceeded to determine the applicant’s application on the basis of the documents in the case.

4.  The background to this case and the applicant’s claim have been set out in our Judgment.  We will not repeat them.

5.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may extend the time for the filing of the notice of motion.

6.  The applicant’s present application is out of time by three weeks.  The applicant in his affirmation states :[1]

‘ … I received the judge decision … on 14 April 2022. I received the Court Order right time but I do not read and write English .the judge order was in English. No body can help me on this matter and also I don’t have any idea of the possibility my situation is very bad then Lat[e] file the judicial review part Notice of Motion’

7.  While we acknowledge that the applicant may have had a language barrier in understanding the rules of procedure, the onus is on the applicant to explain what he did in the intervening period.  A mere statement to the effect that he was unaware of the rules is not a good reason.  We therefore find that the delay was a serious one.  In any event, the more important consideration in deciding whether to extend time is the prospect of the applicant’s intended appeal to the Court of Final Appeal.

8.  As to the merit of the intended appeal, section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, 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 Court of Final Appeal for decision.

9.  The notice of motion states :

‘ … I would like to inform this 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 favour while rejecting my claims. Actual life occur different situation then what is mentioned in COL information. The officer and court perfect to ignore the overwhelming of the evidence of this violence towards minorities. The officer and court perfect to ignore the overwhelming of the evidence of this violence towards minorities. Searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable. Hong Kong government doesn’t know about the Corruption in Bangladesh. If I would return to Bangladesh must be harmed and killed by enemy by the local supporters of rival political party Awami League (AL). … ’

10.  Having considered the notice of motion and the 3‑page annexure, we are of the view that the grounds put forward by the applicant do not constitute viable grounds for giving leave to appeal.  Importantly, no question of great general or public importance has been identified as required by section 22(1)(b) of the HKCFAO.

11.  Nor do we see any basis for granting leave under the ‘or otherwise’ limb under section 22(1)(b).

12.  In the circumstances, the intended application for leave to appeal to the Court of Final Appeal has no prospect of success.  This being the case, it would be futile to extend the time for making the application.  Accordingly, we refuse to extend the time and dismiss the notice of motion.

CACV 383/2021
[2022] HKCA 525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2021

(ON APPEAL FROM HCAL NO. 2217 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) :

I. The appeal

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 7 September 2018. 

2.  Pursuant to the directions of the Registrar of Civil Appeals on 11 August 2021, the applicant was required to provide written submissions to the Court by 25 August 2021.  The applicant has failed to do so.  Pursuant to paragraph 8 of the same directions, the applicant is now deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.  Factual background

3.  The applicant is a national of Bangladesh.  He arrived in Hong Kong illegally on 16 December 2013 and was arrested by the Police on the same day.  He submitted his non‑refoulement claim form on 25 October 2017 on the basis that he would be harmed or killed by supporters of a rival political party known as the Awami League.

4.  The details of the applicant’s claim have been summarized by the Deputy Judge at [1]-[3] of the CALL‑1 Form.

III.  The Director’s Decision

5.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 20 November 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.

IV.  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Board on 1 December 2017 and attended an oral hearing on 31 May 2018 before the Board.  The Board thereafter dismissed the applicant’s appeal against the Director’s decision on 7 September 2018.

7.  The Board found there were serious inconsistencies and contradictions in the applicant’s oral evidence.  In particular, the Board was not prepared to accept that the applicant was ever attacked or threatened by the Awami League.  The Board further found that the applicant was not a witness of truth.  In any event, the Board was not satisfied that the applicant would face any real harm in Bangladesh if he is to return there in the reasonably foreseeable future. Therefore, the Board found that the applicant’s claim for non‑refoulement was unsubstantiated and failed on all applicable ground.

V.  Decisions of the Judge

8.  The applicant filed a Form 86 with a supporting affirmation.  No grounds of relief were set out in his Form 86.  In his supporting affirmation, he simply annexed the decision of the Board and the hearing bundle at the Board’s hearing.

9.  The Judge considered the merits of the application and found that the applicant did not put forward grounds for challenge.  He found that there was no error of law or procedural unfairness that could be found and therefore, the application was dismissed.   

VI.  Grounds of appeal

10.  The applicant’s grounds of appeal can be summarised as follows :

1)  The Judge was wrong in his decision in coming to the conclusion that the Board did not err in its decision.

2)  There was a lack of clarity and transparency in the trial bundle.  The Judge dismissed his claim because ‘it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly, he was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood it’s cont.’  This is an overstatement as the bundle was only interpreted to him whenever the Board found it necessary to be referred to certain paragraphs or document.  He only understood those contents which were interpreted to him and he had no means to find out what the rest was.  The bundle was never read to him prior to the oral hearing and he was asked to pick it up with limited assistance (as Duty Lawyer has refused to provide further assistance).  By the fact that he speaks little English and can barely read English, it was unfair and detrimental to expect him to prepare for the hearing.

3)  As he has to rely heavily on the interpreter, he did not have the means and could not find out if the interpretation was correct or not.  It has proven that his words have always been wrongly interpreted and a lot of words were simply lost in translations.  As such, the Board had wrongly exercised case management power in deciding against him on the issue of credibility.  He did not want to clarify the matter further before the Board because he did not have anyone to seek legal advice from and also because he has reached a point of frustration in having to explain himself for things that he had never said.

4)  The present proceedings should be settled similarly as in another case, and the Director should consider the case afresh in a different way and if necessary the BOR 2 should be done separately, requiring re‑screening of the non‑refoulement claim after considering the additional grounds not previously ‘represented or recognised’.

5)  Failure of the Court below to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up‑to‑date COI in the consideration of his claim.

VII.   Our view

11.  The grounds of appeal as stated above were not relied before the Court below.  In any event, they are nothing but broad and vague allegations without specifics or elaboration.

12.  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 particularly when the grounds now relied upon were not advanced before the Judge.

13.  In our view, there is simply no merit in the applicant’s appeal.  The Judge had provided his reasons of refusal in his decision.  There is no error in the Judge’s decision.  Accordingly, the appeal is dismissed.