RE MD KYKOBAD alias kay kobad

CACV 390/2019

[2020] HKCA 233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390OF 2019

(ON APPEAL FROM HCAL 206/2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

Application

1.  Before the court is a notice of motion filed on 9 January 2020 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against this court’s judgment dated 3 January 2020 ([2020] HKCA 24) (“Judgment”), dismissing the applicant’s appeal from a decision dated 19 August 2019 ([2019] HKCFI 2052) by Deputy High Court Judge Josiah Lam, refusing him leave to apply for judicial review of the decision dated 6 February 2018 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim.

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that a paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA, from any judgment of the CA in any civil cause or matter, whether final or interlocutory, if, in the opinion of the CA or the CFA, 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, in seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to infomr the Honourable Court that there is some error in law in my decision. Decision maker just relied on COL Information and my previous facts which were in favor while rejecting my claim. Acual life occur different situation then what is mentioned in COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The Decision betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  Second, on 22 January 2020, the applicant lodged written submission that was a somewhat expanded version of the skeleton submission filed on 5 November 2019, a summary of which can be found in [17] of the Judgment.  By the later submission, the applicant added the following: (1) a one-sentence assertion^[1] that the Board had acted in a procedurally unfair manner by not properly assessing his credibility; (2) a statement of the trite principle that the court may intervene with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker^[2] (but without explaining in any way how it may be material his proposed appeal to the CFA); and (3) a reference to section 37ZT of the Immigration Ordinance (Cap 115)^[3] (which clearly has no relevance as the applicant had not been late in appealing the Director of Immigration’s rejection of the Claim to the Board).

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb.

8.  While the applicant alleged in his notice of motion that we have erred in the Judgment, he has not identified the error(s) that we have supposedly made.

9.  Insofar as the applicant is suggesting in his notice of motion that the Department of Immigration officers and the Board adjudicator involved in the screening of his non-refoulement claim and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

10.  Indeed, contrary to such suggestion, it should be apparent from the summaries in [8] and [13] of the Judgment that both the Director of Immigration and the Board had considered and analysed, in detail and with care, the testimony and information provided by the applicant.  The non-refoulement claim failed at both tiers of the screening process primarily on the facts and evidence of the applicant’s particular claim. 

11.  In particular, before the Board, for the reasons detailed at [13] of the Judgment, the applicant was found not to have established any of the proscribed risks on his return to Bangladesh that warrants non-refoulement protection.  This was a finding of fact well within the purview of the Board, which arrived at the same after hearing the applicant and testing his evidence.  As stated in [6] above, the applicant has, for the purpose of seeking leave to appeal to the CFA, made a bare assertion in his written submission that the Board had failed to properly assess his credibility.  However, he has not given any particulars as to how the Board had allegedly so failed.  In this regard, the Board dealt with the applicant’s appeal in a 21-page decision. More specifically, in [53] to [103], the Board analysed the applicant’s testimony and provided detailed reasons as to how it fell short of what is required to establish each of the proscribed risks. 

12.  The Board did refer to some COI in finding available reasonable state protection in the context of dealing with torture risk and in finding reasonable internal relocation options to lower the future risk of harm (if any).  However, with regard to the former use of COI, the Board’s primary findings under torture risk were (1) that there was no or no reliable evidence that the applicant had sustained severe physical or mental injuries that qualify as torture; (2) that the attacks and threats alleged by the applicant did not amount to infliction of the sever pain or suffering contemplated in the definition of torture in the Immigration Ordinance (Cap 115); and (3) that was no evidence that the Chatra League/Awami League people implicated by the applicant were acting in any official capacity in the Bangladeshi government.  Likewise, the finding of relocation alternatives based on COI was a fall back in case any of the proscribed risks did materialise in the future, which the Board had primarily found unlikely.

13.  The applicant had not, by his proposed grounds for judicial review or grounds of appeal, articulated any or any proper basis to challenge the Board’s findings against him.  And we can discern no ground to question the Board’s assessment of the quality the applicant’s evidence.

14.  As for the courts’ role, we have already explained in [19] and [20] of the Judgment that a judicial review is not a channel for a reconsideration of facts.  The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.

15.  Neither the notice of motion nor the applicant’s written submission has really engaged the reasons given in the Judgment.

16.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.