Case Detail

CACV 589/2021

[2022] HKCA 1680

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 589 OF 2021

(ON APPEAL FROM HCAL NO 2747 OF 2018)

________________________

BETWEEN
	Alim Md Abdul	Applicant
	and
	Torture Claims Appeal Board / Non refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP and Cheung JA in Court

Date of Written Submissions:	8 July 2022
Date of Judgment:	11 November 2022

________________________

J U D G M E N T

________________________

Hon Kwan VP (giving the Judgment of the Court):

1. This is the applicant’s Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal handed down on 24 June 2022 ([2022] HKCA 879). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge K W Lung dated 16 December 2021 ([2021] HKCFI 3775) refusing to grant leave for the applicant to apply for judicial review concerning his non-refoulement claim.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 24 June 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The applicant lodged his written submissions on 8 July 2022. Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The applicant is a national of Bangladesh. He entered Hong Kong illegally and was arrested by the police on 14 February 2016. He raised his non-refoulement claim on 5 March 2016 on the basis that he would be ill-treated or killed by members of the Awami League because he belonged to the Jamate-Islam Party or the Bangladesh Nationalist Party and refused to pay extortion money to them.

Grounds of appeal

4. The applicant stated in the Notice of Motion filed on 24 June 2022 that he was not totally satisfied with the court’s decision and wanted to go to the Court of Final Appeal.

5. In his written submissions, he reiterated the problems he faced in his home country and submitted that he did not get justice in the courts so he wished he would get justice in the Court of Final Appeal.

Analysis and disposition

6. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) 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.

7. The applicant’s grounds and submissions in the present application are just bare assertions without particulars or evidence in support. In particular, he has not pointed out any error of the Court of Appeal’s decision in dismissing his appeal. Besides, he failed to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

8. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 24 June 2022.

(Susan Kwan)
Vice President

(Peter Cheung)
Justice of Appeal

The Applicant (Appellant), acting in person

CACV 589/2021

[2022] HKCA 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 589 OF 2021

(ON APPEAL FROM HCAL NO 2747 OF 2018)

________________________

BETWEEN
	Alim Md Abdul	Applicant
	and
	Torture Claims Appeal Board / Non‑refoulement Claims Petition Office
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan Ag CJHC and Cheung JA in Court

Date of Written Submissions: 11 January 2022

Date of Judgment: 24 June 2022

___________________

J U D G M E N T

___________________

Hon Kwan Ag CJHC (giving the Judgment of the Court):

1. On 16 December 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 28 December 2021.

2. The applicant is a national of Bangladesh. He is 41 years old. He was arrested by the police on 14 February 2016 on suspicion of being an illegal immigrant. He admitted he entered Hong Kong illegally by boat on that day. He raised his non-refoulement claim on 5 March 2016 on the basis that he would be ill-treated or even killed by members of the Awami League (“AL”) because he belonged to Jamate-Islam Party or the Bangladesh Nationalist Party and refused to pay extortion money to them.

The Director’s decision

3. The Director was of the view that the applicant’s level of risk of serious harm from the opposing political parties was low. Given the alleged threats received from the AL, the applicant should have relocated to other places in Bangladesh but chose not to do so. Furthermore, members of the AL did not confront the applicant in hospital while he was there for about a month. The Director was of view there is no evidence that the applicant was facing genuine and substantial risk of harm from the AL if he is returned to Bangladesh. The Director also held there was availability of state protection from the official reports produced by various overseas government agencies. The Director considered there was no risk of persecution of the applicant in Bangladesh and that he failed to establish a personal and real risk of being arbitrarily deprived of his life. Moreover, the Director held that internal relocation was not unreasonable to the applicant, which further negates the perceived risk.

4. Therefore, by a Notice of Decision dated 14 December 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[2], BOR 2 risk [3], BOR 3 risk[4], and persecution risk[5].

The Board’s decision

5. The applicant appealed against the Director’s decision to the Board and was requested to attend a hearing. However, the applicant stated in writing he did not wish to attend the hearing because he was suffering from depression as a result of his detention. The Board duly explained to the applicant the consequences of being absent at the hearing and requested him to confirm it remained his wish not to attend after considering the Board’s letter. The applicant responded he “fully understood” and requested that a decision be made on his appeal without a hearing. The Board therefore assessed and decided his appeal on the materials before it.

6. The Board considered the applicant was not a witness of truth because there were inconsistencies and unexplained incidents in his evidence. Without an explanation from the applicant, the inconsistencies could not be resolved. Therefore, the Board rejected the applicant’s claims and dismissed the appeal on 28 November 2018.

The intended judicial review

7. The applicant filed a Form 86 and an affirmation on 3 December 2018 to seek leave to apply for judicial review against the decision of the Board. The applicant put forward the following grounds as summarised by the judge at §13 of his decision:

8. “…[the applicant] considers that the decisions of the Director and the Board are wrong. He insists upon his right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights. He cites a case where an illegal immigrant was repatriated but was killed in his country. The administration of his own country is incompetent and corruptive. Further the Director has failed to attain high standard of fairness required by the Wednesbury test.”

8. As for the applicant’s affirmation, he simply annexed the decision of the Director and the hearing bundle before the Board. As he did not request an oral hearing, DHCJ Lung considered the application on paper.

The judge’s decision

9. The judge reviewed both the decisions of the Director and the Board, and decided that the applicant failed to show any error of law, procedural unfairness or any failure to apply high standards of fairness in the decisions. The judge concluded that the applicant’s intended challenge does not have any prospect of success and dismissed the leave application on 16 December 2021.

Grounds of appeal

10. In the Notice of Appeal, the applicant only stated that he wants to challenge the decision. He did not give any particular grounds for the challenge. As for his written submissions, he reiterated the problems he faced in his home country and submitted that the Director and the Board did not correctly consider his claims.

Legal Principles

11. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.

12. 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 judge’s 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.

Analysis and disposition

13. In the present appeal, the applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in dismissing his leave application. The judge has provided detailed reasons for the decision and his decision is well founded.

14. There being no valid grounds of appeal, we dismiss the appeal accordingly.

(Susan Kwan)
Acting Chief Judge of the High Court

(Peter Cheung)
Justice of Appeal

The Applicant, acting in person

[1] [2021] HKCFI 3775

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

ALIM MD ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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