Sheikh Badrul v. Torture Claims Appeal Board /Non-refoulement Claims Petition

CACV 125/2020

[2021] HKCA 684

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2020

(ON APPEAL FROM HCAL NO 1582 OF 2018)

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BETWEEN

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Before:  Hon Barma JA, P Ng and S T Poon JJ in Court

Date of Written Submission:  18 March 2021

Date of Judgment:  3 June 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.On 23 December 2020, this court (Barma JA, P Ng and S T Poon JJ) handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) on 8 May 2020 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board (“the Board”) dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1] We will not repeat them here.

3.The applicant subsequently applied, by a notice of motion dated 18 February 2021, for leave to appeal to the Court of Final Appeal.  The applicant stated in the Notice of Motion that (sic):

“The claims that the judgment has made stated is no substance in the grounds of the application is not true.

On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator.

The applicant gently did not have enough time to address the bundle.

Rest of the grounds I will submit as soon as possible.”

4.In the affirmation dated 18 February 2021, the applicant deposed that:

“1. The [judges] were wrong in law in holding that there was no state acquiescence or involvement.

2. The [judges] also failed to find out the clear details of the current situation of Bangladesh”

5.The applicant lodged a written submission in support of the application on 18 March 2021.  In the written submission, the applicant contended that:

(1)  The Board failed to meet the high standard of fairness.  The applicant cited ST v Betty Kwan & Anor [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 without explaining the relevance of those cases;

(2)  The Board failed to properly assess his credibility; and

(3)  The Board’s decision was Wednesbury unreasonable.

6.Having considered the applicant’s notice of motion and written submission, we see no reason to depart from the usual practice of determining an application of this kind on the papers.  We have, therefore, determined the applicant’s application on the basis of the documents filed.

7.We are of the view that the applicant has not provided any reasonable explanation for his delay in bringing the intended appeal.  We nonetheless go on to consider the merits of the intended appeal.

8.The matters stated by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.  

9.The applicant did not provide sufficient particulars for any of the grounds relied on in the application.  He also did not explain how the legal authorities cited by him are related to the application.  In our view, all of the grounds relied on by the applicant are not reasonably arguable before the Court of Final Appeal for this reason alone.

10.The applicant claimed that this court erred in the assessment of state acquiescence and the current situation of Bangladesh. As we have explained in [15] of our judgment, under the established principles of judicial review, the role of the court is not to hear the claim afresh but to consider if there are any public law errors in the Board’s Decision.  The court therefore did not have to come to a view on the above matters, as alleged by the applicant.

11.Further, given that the Board dismissed his claim for non-refoulement protection primarily because he had embellished his claim, we are not satisfied that any ground for judicial review based on state acquiescence and the current situation of Bangladesh would have any material impact on the outcome of the application or the appeal before us.

12.In our view, these grounds are not reasonably arguable before the Court of Final Appeal.

13.We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

14.For these reasons, the notice of motion dated 18 February 2021 is dismissed.

The applicant acting in person