RE ERSHAD MOHAMMED

CACV 108/2021

[2021] HKCA 1171

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 108 OF 2021

(ON APPEAL FROM HCAL NO. 489 OF 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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge C P Pang of 9 March 2021 in which he refused to grant leave to him to apply for judicial review.

1.2  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 3 June 2021, he failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Bangladesh. He surrendered to the Immigration Department on 4 September 2015 and claimed that he came to Hong Kong illegally by boat from the Mainland on 3 August 2015. On 12 May 2016, he applied for non‑refoulement protection.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by members of the Awami League for his involvement in the Bangladesh Nationalist Party.

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

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 11 June 2018.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’) as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 16 June 2018.  No hearing was held for the applicant because after the applicant was notified of the hearing date, he informed the Board that he did not wish for a hearing and he asked the Board to “proceed to the ‘decision’ part”, and “skip the ‘hearing’ part”, so that he could “receive the decision as soon as possible”.  The Board responded by letter stating that it was generally desirable for applicants to appear at the hearing, but if the applicant declined to attend, the Board would proceed with the application based on the available information.  The applicant replied confirming his decision not to have a hearing. Pursuant to the Immigration Ordinance (Cap. 115) section 12 of Schedule 1A, the Board proceeded to deal with the application without an oral hearing.

4.2  The Board dismissed the applicant’s appeal on 11 January 2019 (‘the Board’s Decision’).  The Board found that the only evidence before the Board about the incidents relied upon by the applicant was his own testimony which was given by his brief participation in an interview on 5 June 2018 and there were gaps and anomalies in the information provided by him.  The Board was not satisfied that the applicant was an actual or perceived active supporter of his political party.  The Board could not find that the applicant would suffer any real chance of harm in Bangladesh in the reasonably foreseeable future.

5)  Decision of the Judge

5.1  The applicant filed his Form 86 without any supporting grounds.  In his supporting affirmation, he stated that ‘I apply against the decision of the immigration officer due to

(1)  information provided was biased and irrelevant,

(2)  failed to determine my threat upon my return to my native country,

(3)  judgment based on information provided was neglected.’

5.2  The Judge held that the applicant’s complaints were general and vague assertions without particulars and evidence in support.  There was no reasonably arguable basis to challenge the Board’s decision.

6)  Grounds of appeal

6.  The applicant in the notice of appeal stated that he will face hardship if refouled.  He stated that the Board has relied on sources of news which was not officially recognized or was simply hearsay.  He stated that outdated cases were relied upon, and groundless speculations were made against him.

7)  Our view

7.1  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]. 

7.2  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge.

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