RE MADBOR RASAL

CACV 94/2021

[2022] HKCA 130

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 94 OF 2021

(ON APPEAL FROM HCAL NO. 2465 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. Leave to appeal to the Court of Final Appeal

1.  On 11 August 2021, this Court (Cheung JA and B Chu J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge C P Pang given on 2 March 2021 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 25 August 2021, for leave to appeal against our judgment to the Court of Final Appeal.  The applicant simply stated in his notice of motion that he wants to go to the Court of Final Appeal. 

4.  In the applicant’s written submission, he stated that state agencies wanted to kill him.  He fled to Hong Kong for his life.  He wants to go to Court of Final Appeal ‘for the great interest of my life safety’. 

II.  Legal principles

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

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 25 August 2021 is dismissed.

Applicant, unrepresented, acting in person

CACV 94/2021

[2021] HKCA 1170

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 94 OF 2021

(ON APPEAL FROM HCAL NO. 2465 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 C P Pang of 2 March 2021 in which he refused to grant leave to him to apply for judicial review.

2.  This appeal was scheduled to be heard on 2 August 2021. Despite the directions contained in the letter from the High Court to the applicant dated 24 May 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly, the hearing was vacated by the Court’s letter to the applicant dated 8 July 2021, and we will deal with this appeal on paper.

2)  Factual background

3.  The applicant is a national of Bangladesh.  On his own admission, he claimed that he departed Bangladesh for the Mainland in January 2014 on the strength of his passport with a Chinese visa.  He eventually went to Shenzhen and from there entered Hong Kong on foot illegally in February 2014.  He subsequently on 20 February 2014 applied for non‑refoulement protection.

4.  The basis of the applicant’s claim is that he was a member of the Jalamat‑e‑Islami and would be harmed or killed by the rival Awami League.  False criminal charges had been brought against him at the instigation of the Awami League.

5.  The background facts have been summarized in the decision of the Judge at [3].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 12 February 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director decided against the applicant’s right to life claim on 14 June 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision and Further Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 30 August 2018, the Board dismissed the applicant’s appeal on 19 October 2018 (‘the Board’s Decision’).

9.  The Board found that the applicant was not a prominent member of his political party but was only a frontline worker or volunteer.  It was not accepted that he was targeted by the Awami League.  Despite a long lapse of time, the applicant could not provide evidence of the alleged false criminal charges laid against him in Bangladesh.  There was no evidence to show the applicant’s purported physical injury.  The Board found that the applicant’s account was untruthful.  If the applicant returned to Bangladesh, there is no evidence to suggest that he would not have a fair trial.   

5)  Decision of the Judge

10.  The applicant filed his Form 86 supported with affirmation and no grounds for relief were sought.  

11.  The Judge held that the Court will not intervene by way of judicial review unless there were errors of law, procedural unfairness or irrationality in the Board’s Decision.  He explained that on the Board’s findings, there are no factual basis from the applicant to support any of the applicable grounds.  There was no prospect of success in the applicant’s intended judicial review.

6)  Grounds of appeal

12.  The applicant in the notice of appeal stated broadly and vaguely that the Judge refused his application without showing good reasons.

7)  Our view

13.  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]. 

14.  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.

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