RE ANWAR HOSSAIN

CACV 333/2019

[2019] HKCA 1286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 333 OF 2019

(ON APPEAL FROM HCAL NO. 537 OF 2018)

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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.     This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan given on 15 July 2019 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1     The applicant is a national of Bangladesh. He arrived in Hong Kong illegally on 26 December 2007 and was arrested on 17 August 2008.  He subsequently lodged a non‑refoulement claim.

2.2     The basis of the applicant’s claim is that he would be harmed or killed by members of the Awami League (‘AL’) and its student wing.

2.3     The background facts have been summarized in the decision of the Judge at [2] to [13].

3)  The Director of Immigration’s Decision

3.1     The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 24 November 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2     By a Notice of Further Decision dated 19 June 2017, the Director also assessed BOR Article 2 (right to life) risk in respect of the applicant and decided against the applicant.

4)  The Torture Claims Appeal Board’s Decision

4.1     The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a re-hearing de novo held on 27 November 2017, where the Board considered all four areas for non‑refoulement (BOR 2, BOR 3, torture risk and persecution risk), the Board dismissed the applicant’s appeal on 9 March 2018 (‘the Board’s Decision’).

4.2     The Board found that the applicant’s stated facts do not show harm or threat of harm.  The stated injuries do not satisfy minimum level of severity and suffering.  Internal relocation was possible.  There was no substantial ground for believing there would be substantial future risk of harm nor substantial risk to life.  There was no well‑founded fear of persecution.

5).  Decision of the Judge

5.     The applicant did not attend the hearing before the Judge.  The Judge held that given the applicant’s history before the Director for persistent failure to attend scheduled meetings, he would exercise his discretion not to allow the applicant’s subsequent excuse for his failure to attend the hearing before him and would dispose of his judicial review application on paper.  The Judge held that most of the applicant’s grounds for leave for judicial review were vague and broad, containing no specifics to the particulars of the applicant’s case, and without stating how the Director or the Board erred in their decisions.  There was no realistic prospect of success in the intended application.  

6)  Grounds of appeal and written submissions

6.1     The applicant in his Notice of Appeal relied on the standard pro forma grounds of appeal commonly used in this type of appeal.  They include complaints against the Judge for failure to consider extended state acquiescence; failure to give sufficient reasons for the Board’s BOR 3 assessment; failure to conduct sufficient inquiry into country of origin information.  No elaboration was given.

6.2     In the applicant’s written submission, he put forward broad and general notions of non‑refoulement principles without elaborating on the specifics of how they relate to the circumstances of his case.

6.3     The applicant submitted in Court that the situation in Bangladesh is still bad and it is unsafe for him to return home.  The same political party is still in power and the opposition leader has been in jail for the past three years.  He said his parents had died in 2015 and his brother is living outside the country.  He has made a decision to live and stay in Hong Kong as he had married a local girl.

7)  Our view

7.1     We are of the view that the applicant’s appeal is without merits.  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 of 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].  We cannot see the applicant’s variety of broad complaints have any real complaint against the decision of the Judge.  The decision by the Judge not to restore the hearing was a proper exercise of discretion.  In any event, he had fully considered the materials before him.  None of the matters said by the applicant before us constitutes proper grounds of appeal.

7.2     Accordingly, the appeal is dismissed.