Md Shajahan Ali v. Torture Claims Appeal Board

CACV 487/2020

[2022] HKCA 511

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 487 OF 2020

(ON APPEAL FROM HCAL NO 703 OF 2018)

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Before:  Hon Kwan VP, Barma JA and Lisa Wong J in Court

Date of Written Submission: 26 October 2021

Date of Judgment:  22 April 2022

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J U D G M E N T

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Hon Kwan VP (handing down 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 (Kwan VP, Barma JA and Lisa Wong J) handed down on 29 September 2021 ([2021] HKCA 1427). The Court of Appeal rejected his appeal against the decision of Deputy High Court Judge Bruno Chan dated 19 December 2019 ([2019] HKCFI 3011) refusing to grant extension of time for the applicant to apply for leave to seek 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 11 October 2021 that the Notice of Motion shall be determined on paper without an oral hearing.  The applicant lodged his written submissions on 26 October 2021.  Having considered his written submissions and the papers, we think it is appropriate to determine this application on paper.

3.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 12 July 2009 and was arrested by police on the following day.  He lodged his torture claim on 17 July 2009 which was subsequently treated as a non-refoulement claim under the unified screening mechanism.  His claim was made on the basis that he will be harmed or killed by the rival political party Awami League and he was wanted by the Bangladeshi police for murder.

4.He filed a Form 86 out of time on 23 April 2018 to seek leave to apply for judicial review against the decision of the Board. DHCJ Bruno Chan refused to grant extension of time for him to take out the application and dismissed the leave application on 19 December 2019.

5.On 10 September 2020, the judge granted an extension of time for the applicant to appeal against his decision. The applicant filed a Notice of Appeal on 18 September 2020.  The appeal was dismissed by the Court of Appeal on 29 September 2021.  The applicant filed a Notice of Motion on 11 October 2021 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

6.In the Notice of Motion, the applicant stated the following grounds of appeal:

(1)  the Court of Appeal relied on hearsay;

(2)  the decision is irrational and unfair;

(3)  the Court of Appeal reviewed the matter lightly while high standards of fairness are required in the determination of torture claims.

7.In his written submissions, he reiterated the problems he faced in Bangladesh and further contended that:

(1)  the judge was wrong as a matter of law for not applying the principle of irrationality to the decisions of the Director and the Board;

(2)  the decision has a significant effect of finally disposing of the applicant’s torture claim and making him liable to be removed;

(3)  the judge was wrong as a matter of law for not applying the principle of procedural unfairness to the decisions of the Director and the Board whereby they were required to give reasons justifying their decisions;

(4)  the judge did not apply greater care and disappointed the applicant;

(5)  the judge did not analyse the applicant’s claim properly;

(6)  the judge’s decision was unreasonable;

(7)  the judge may not have received what had been refused by the Board and the Director in the applicant’s claim;

(8)  the Board failed to give sufficient chance to the applicant to arrange relevant evidence to support his non-refoulement claim and his appeal;

(9)  the applicant will face hardship if he returns to his home country, the Board significantly relied on the source of news which is not officially recognized or is simply hearsay;

(10)  the Board failed to evaluate whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;

(11)  the adjudicator failed to assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection.

Analysis and disposition

8.Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance 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. 

9.The applicant’s grounds are just bare assertions without particulars or evidence in support.  In particular, he has not identified what hearsay evidence was relied on by the Court of Appeal that he was complaining of and did not give any elaboration on the allegation of unfairness in the Court of Appeal’s decision.  Most of his submissions were duly considered by the Court of Appeal on the previous occasion and the Court of Appeal has given detailed explanation for the dismissal of his appeal in the decision on 29 September 2021.  The applicant failed to demonstrate that the Court of Appeal was wrong in its decision.  Most importantly, he has 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 to appeal on the ‘or otherwise’ limb under section 22(1)(b). 

10.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 11 October 2021.

The Applicant (Appellant), appearing in person