RE ABU SAMA SALIM

CACV 93/2019

[2019] HKCA 694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 93 OF 2019

(ON APPEAL FROM HCAL NO. 705 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 Josiah Lam given on 21 February 2019 [2019] HKCFI 374 in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

2)  Factual background

2.1  The applicant is a national of Bangladesh.  On 12 April 2008, he entered Hong Kong illegally from the Mainland. He was arrested by the Police on 19 July 2008.  On 26 July 2008, he raised 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 Communist Party (‘CP’) because he refused to pay them money or to join them.  He was a member of a party called the Chhatra Shibir (‘CS’) whose relationship with the CP was always strained.

2.3  The background facts have been summarized in the decision of the Judge at [1]-[11].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 3 November 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of life) (‘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 and appeared at the hearing before the Board on 7 February 2018.  The Board dismissed the applicant’s appeal on 3 April 2018 (‘the Board’s Decision’).

4.2  The Board perused the available evidence, and found that the applicant’s torture claim to be incredible and untrue.  The Board found that the applicant’s knowledge of CS scanty and even wrong in some places despite his allegation of being a promoted member and having served the party for years.  The Board found that his initial letters to the Director stated Awami League (‘AL’) threats only, with no mention of his involvement with CS.  The Board found this was his attempt to tailor his case to the changing situation in Bangladesh.

5)  Decision of the Judge

5.  The Judge assessed the applicant’s application for leave for judicial review.  He stated the legal position that the Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.  He found that the applicant was provided with legal assistance in both stages of the two‑tier screening process.  The Judge found there was no evidence to suggest that the Board failed to consider updated or relevant country of origin information.  He found that there was no need for the Board to consider issues of state acquiescence as the Board did not accept the applicant’s case on credibility.

6)  Grounds of appeal

6.1  The applicant in the notice of appeal filed on 25 February 2019 referred to his grounds of appeal in his supporting affirmation which stated that the Judge was wrong in holding there was no state acquiescence.  He complained that the Judge failed to give detailed reasons.

6.2  The applicant’s skeleton submissions lodged on 8 May 2019 submitted that a high standard of fairness is required in the determination but without giving elaboration of how such standard was not achieved in the present case.  He accused the Board of approaching the matter by simply trying to see if there is fault with the Director’s Decision.  He stated that the decision maker is under a duty to provide minimum standards of procedural fairness.  None of these submissions are accurate complaints against the decision of the Judge.

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.  The Judge explained at [37] that the Board did not need to consider the issue of state acquiescence because it did not accept the applicant’s claim as true.  And contrary to the suggestion made in the first ground of appeal, the Judge made no finding as to the presence or absence of state acquiescence.  There is no evidence that the Judge failed to give detailed reasons. 

7.2  It is trite that in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the Judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).  See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461 and Re Muhammad Usman [2018] HKCA 474. 

7.3  Accordingly, the appeal is dismissed.