Re Miah Abdur Rob

CACV 585/2018

[2019] HKCA 516

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 585 OF 2018

(ON APPEAL FROM HCAL NO. 399 OF 2018)

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Before: Hon Cheung, Zervos JJA and S T Poon J in Court

Date of Hearing: 7 May 2019

Date of Judgment: 10 May 2019

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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 Josiah Lam given on 11 December 2018 in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

2.Factual background

2.1The applicant is a national of Bangladesh. He left Bangladesh for China on 4 July 2013.  He subsequently entered Hong Kong illegally and was arrested on 17 August 2013.  On 23 August 2013 he raised a non-refoulement claim.

2.2The basis of the applicant’s claim is that if he was refouled he would be harmed or killed by some people of the Awami League because he had financial dispute with those people.  The applicant said his enemies made false accusation against him.  He feared the Bangladesh police would arrest him.

2.3The background facts have been summarized in the decision of the Judge at [3]-[18].

3) The Director’s Decision and the Director’s Further Decision        

3.1The Director decided against the applicant’s torture claim on 25 April 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’).

3.2By a further decision of the Director dated 5 July 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant (‘the Director’s Further Decision’).

4)  The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Board on 3 May 2016.  After a hearing held on 14 November 2017, the Board dismissed the applicant’s appeal on 9 March 2018 (‘the Board’s Decision’).

4.2On the applicant’s account of events, the Board found the complained situation was only a private dispute.  There was no evidence to show the applicant was discriminated due to his political membership or by the Bangladesh government.  There was no evidence of state involvement or that AL was after the applicant to cause him harm.  The applicant had not shown harm to a minimum level of severity.  The Board studied the relevant country of origin information.  It was satisfied that Bangladesh had reasonable state protection.  The Board refused the applicant’s application with respect to all four applicable grounds, namely, risk of torture, risk of persecution, risk of torture or cruel, inhuman or degrading treatment or punishment and risk of violation of the right to life.

5)  Decision of the Judge

5.The Judge assessed the applicant’s application for leave for judicial review.  He stated the principle that the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  He stated that the Court of Appeal has repeatedly held that high standards of fairness do not prescribe a non-refoulement claimant with an absolute right to free legal representation at all stages of the proceedings.  The Judge found that the applicant’s complaint about language problem was without merit, as the applicant either had access to friends who could help with his language understanding, or he had the assistance of an interpreter while he was legally represented, or when he was before the Director or the Board.  The Judge found that there was no delay in the delivery of bundles to the applicant.  The Judge found that there was no evidence on the applicant’s complaint about ‘outdated cases’ or ‘information not officially recognized or simply hearsay’.

6)  Grounds of appeal

6.1The applicant in the notice of appeal filed on 17 December 2018 stated that his grounds of appeal could be found in his supporting affirmation.

6.2In the applicant’s supporting affirmation filed on 17 December 2018, he enclosed the Decision of the Judge.  He stated that his grounds of appeal were that the Judge was wrong in law in holding there was no state acquiescence or involvement.  The applicant did not further elaborate on these grounds.  He stated that the Judge failed to provide detailed reasons without stating how that was the case.

6.3The applicant’s skeleton submissions lodged on 4 April 2019 also lacked any reason or elaboration.  It repeated various principles for non-refoulement cases such as ‘a high standard of fairness’, or that the Court must assess with ‘rigorous examination and anxious scrutiny’, or that the Court must give the applicant ‘every reasonable opportunity’ to establish his claim, or that there must be ‘procedural fairness’.  The applicant simply stated these principles without giving specifics or elaboration on the application of these principles.

6.4Further, the applicant alleged in his skeleton submissions that the Board’s approach was to simply see if it could find fault with the decision of the Director.  He accused the Board of not considering country of origin information.  

7)  Our view

7.1We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  Many of the grounds of appeal have been considered by the Judge.  The applicant provided no specifics or elaboration on what were his grounds of appeal.

7.2An 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].

7.3In 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, 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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of High Court: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461 and Re Muhammad Usman [2018] HKCA 474.

7.4Accordingly, the appeal is dismissed.

Applicant, unrepresented, appearing in person