MOFIJUR v. THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 143/2019

[2019] HKCA 1185

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 143 OF 2019

(ON APPEAL FROM HCAL 1454 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Yau J (giving the Judgment of the Court):

1.  By a judgment dated 6 August 2019 (“the Judgment”), this Court dismissed the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) dated 9 July 2018 refusing his leave to apply for judicial review (“the Deputy Judge’s Decision”).  The subject-matter of the intended judicial review is the decision of the Torture Claims Appeal Board (“TCAB”) given on 9 July 2018 dismissing the appellant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 September 2015 and 30 November 2016 rejecting the applicant’s non-refoulement claim.  

2.  The facts and issues in the appeal, as well as reasons for dismissing it, are set out in the Judgment and the Court is not going to repeat them here. 

3.  On 15 August 2019, the applicant filed a Notice of Motion applying for leave to appeal the Judgment to the Court of Final Appeal.  

4.  In the Notice of Motion, the applicant simply stated that the TCAB had made many legal errors and the Judge and the Court of Appeal had failed to consider them. 

5.  In his written submission dated 29 August 2019, the applicant set out the following grounds:

(a) It is impossible for him to relocate to another place in Bangladesh because he would not be able to find a house and a job and as he had to produce his identity card to the local police it would be easy for the police to catch him;

(b) It is illogical for the Immigration Department to conclude that he was not a refugee but then released him on recognizance instead of repatriating him to Bangladesh;

(c) “They” cancelled his claim as his “torture” was very low, but if his enemies tortured him too much, he might have died; “that means my problem finish from the root”;

(d) He was not given a lawyer in the appeal hearing, violating his basic right;

(e) Despite the rulings in the Deputy Judge’s Decision and the Judgement that there was no procedural error in the screening process, the process itself was not correct and even though he might have said something wrong during the process it did not follow that he was not telling the truth; and

(f) It was wrong to say that his enemy had nothing to do with the Pakistan government because his enemy was backed by the police which meant the authority. 

6.  Having considered the applicant’s Notice of Motion and written submission, this Court proceeds to consider this application on papers without any oral hearing pursuant to paragraph 3 of Practice Direction 2.1. 

7.  The applicant is basically repeating his claims in his non-refoulement application.  Grounds (a) and (f) of his submission have been fully considered by the Director and the TCAB and this Court has not found any errors in the decisions.  

8.  Ground (e) has been dealt with by this Court in paragraph 27 of the Judgement while Grounds (b) and (c) make no sense and do not constitute any valid ground of application. 

9.  As regards Ground (d) there are plenty of authorities saying that a non-refoulement claimant does not have an absolute right to free legal representation at all stages of the screening process and court proceedings: see, for example, Re Ahmed Syed Rafiq CACV 272/2017. 

10.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, leave to appeal to the Court of Final Appeal may be granted if 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. 

11.  The non-refoulement claim of the applicant has been refused on a finding of facts in the sense that the TCAB has found the claim of the applicant unreliable and untruthful which the Judge and this Court have found no justification to interfere with. 

12.  None of the grounds raised by the applicant identifies any errors in the Judgment.  They are not viable grounds and do not involve any question of great general or public importance such that it ought to be submitted to the Court of Final Appeal for decision.  There is also no basis on which this Court should otherwise grant leave to the applicant.  The statutory criteria for granting leave to appeal to the Court of Final Appeal are not met. 

13.  Accordingly, this Court refuses to give the applicant leave to appeal to the Court of Final Appeal and dismisses his Notice of Motion.