Re Hossen Kazi Mahabub

CACV 220/2021

[2021] HKCA 1486

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 220 OF 2021

(ON APPEAL FROM HCAL NO 316 OF 2020)

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Before:  Hon G Lam JA and Coleman J in Court

Date of Hearing:  27 September 2021

Date of Judgment: 7 October 2021

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal from the decision of Deputy High Court Judge K W Lung (“Judge”) on 28 April 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“Director”) dated 27 February 2020 rejecting the applicant’s request to make a second non‑refoulement claim.

Background

2.The applicant is a Bangladeshi national.  He arrived in Hong Kong on 4 June 2014 and was permitted to remain as a visitor until 18 June 2014.  He did not depart as required and overstayed.  He was arrested by the police on 9 July 2014 for overstaying, and was referred to the Immigration Department on 10 July 2014.  He lodged a non‑refoulement claim on 12 July 2014.

3.That claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members of the Awami League because of his affiliation with the Bangladesh Nationalist Party (“BNP”).

4.By notices of decision dated 1 September 2016 and 2 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and the latter covered BOR 2 risk.[5]

5.The applicant appealed to the Torture Claims Appeal Board (“Board”) against the Director’s decisions.  The Board rejected his appeal on 8 December 2017. 

6.The applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision dated 8 December 2017.  On 22 June 2018, Deputy High Court Judge Josiah Lam dismissed the application in HCAL 1111/2017.[6]  The applicant’s appeal against that refusal of leave for judicial review was dismissed by the Court of Appeal on 29 October 2018 in CACV 285/2018.[7]  Leave to appeal to the Court of Final Appeal was refused on 29 November 2018.[8]

7.By letter dated 3 January 2020, the applicant wrote to the Director, requesting to make a subsequent non‑refoulement claim.  The matters he relied upon were summarised in [9] of the Director’s decision dated 27 February 2020.  By letter dated 17 January 2020, the applicant was requested to provide further information and evidence in support of his request, but he gave no response.  On 23 January 2020, he was interviewed by the Immigration Department and stated that he did not have any additional information at that moment.  By notice of decision dated 27 February 2020, the Director refused the request.  In doing so, the Director considered the following findings of fact made by him or the Board in relation to the applicant’s previous claim:

(a)  any false accusation, threats or attacks to the applicant’s family by Awami League members did not represent the official stance of the Bangladeshi government or the Awami League as a whole;

(b)  the absence of harm was indicative of a small future risk of harm in the event of refoulement;

(c)  some of the applicant’s statements about his fear of false accusations were inconsistent with earlier information submitted by the applicant and with his behaviour in Hong Kong;

(d)  the Board found that the applicant was not a witness of truth and made up his claims of having been politically active, that he was never a BNP member, and that he did not attend any pro-BNP rallies or engage in any other political activity;

(e)  the applicant was not of any adverse interest to the Awami League or the authorities and there were no criminal cases against him.

8.The Director also considered the applicant’s submissions that there had been significant changes in conditions in Bangladesh and that his risk of harm arose from: having been a BNP member; previously assisting in BNP programs; suffering injuries due to assaults by Awami League members during elections; false accusations by Awami League members; and the Awami League being the current ruling party and very powerful.

9.The Director considered that the applicant’s submissions related to his claimed political affiliation, previous conflicts with Awami League members and false accusations by Bangladeshi police, all of which had been put forward and duly considered in the applicant’s previous claim.  The Director concluded that there had been no change of circumstances to warrant a subsequent claim.

Decision of the court below

10.By application dated 5 March 2020, the applicant sought leave from the Court of First Instance to apply for judicial review of the Director’s decision dated 27 February 2020.  In his supporting affirmation, the applicant stated a number of grounds for judicial review, which the Judge summarized at [14] of the Form CALL‑1. 

11.Following consideration of the documents only, on 28 April 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14]‑[19] of the Form CALL‑1 as follows:

“ 14. In support of his application for leave for judicial review of the Director’s Decision, he put forward the following reasons in his affirmation:

(1) He is a genuine non‑refoulement claimant as he faces all the dangerous problems, harassment and torture in his country. He is unable to find any place to stay safely in his country.

(2) The Director has made a wrong decision without proper inquiry his situation and he invites the Director to go to his country to see for himself.

(3) He had to run away or he would be killed by his enemies.

15. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13.… …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 the decision of the Board.’

17. Those grounds in paragraph 14 do not assist him. Those are his opinions without specifics in support of them. It is not necessary for the Director to go to his country to make inquiry into his situation as the Director may rely upon the country of origin information before making his decision, which he did.

18. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

12.On 5 May 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he would face hardship if he were to return to his home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

13.In his Supplementary Notice of Appeal of 21 July 2021, the applicant did not raise any additional grounds of appeal, but merely stated that the Judge’s decision was unfair, and that he did not agree with the Judge’s decision and wished to appeal.

14.The applicant lodged written submissions for his appeal on 13 August 2021.  Those submissions merely consist of general propositions quoted from the case law without identifying how they relate to or apply in this case.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors made by the Director or the Judge.

15.The appeal hearing took place on 27 September 2021 but the applicant did not appear in court.  It transpired that he had on 23 September 2021 filed a Request for Dismissal of Appeal by which he requested the dismissal of his appeal filed on 5 May 2021.

16.In any event, since the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or as to any specific alleged errors in the Judge’s decision, the appeal was bound to fail.  Further, the grounds of appeal advanced are not relevant to the appeal, as they are directed toward the Board decision, instead of the Director’s decision dated 27 February 2020 that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances within the meaning of section 37ZO of the Immigration Ordinance (Cap 115). 

17.Accordingly, both because of the applicant’s own request for dismissal and the lack of merits, this appeal is dismissed.

The Applicant, unrepresented, did not appear

[1]   [2021] HKCFI 1108, HCAL 316/2020.

[2]   This refers to the 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).

[3]   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.

[4]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]   This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]   [2018] HKCFI 1324.

[7]   [2018] HKCA 764.

[8]   [2018] HKCA 906.