RE DAS RATAN alias SWAPAN BANIK

CAMP 262/2019

[2020] HKCA 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO. 262 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO. 568 OF 2018)

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

1.  By a judgment dated 11 August 2020 ([2020] HKCA 592), this Court (Yeung VP and Chu JA) refused to grant an extension of time to the applicant to appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 14 June 2019 in HCAL 568/2018 refusing to grant him leave to apply for judicial review. The applicant sought to review the decision of the Torture Claims Appeal Board (“Board”) given on 7 February 2018 dismissing his petition/appeal from the decision of the Director of Immigration (“Director”) given on 27 April 2017 rejecting his non-refoulement claim.

2.  By a notice of motion dated 24 August 2020, the applicant now seeks leave to appeal to the Court of Final Appeal on the grounds that:

“I Ratan Das. My life is still in Danger My Home Country, I was returned to Bangladesh. I would like to inform 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 favour while rejecting my claims. Actual life occur different situation then what is mentioned in COL information. The officer and courts perfect [sic] to ignore the overwhelming of the evidence of this violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the dangerous of my life and clearly not reasonable.”

3.  In compliance with the directions made by the Registrar of Civil Appeals on 26 August 2020, the applicant lodged his written submissions on 7 September 2020.  The written submissions contained the factual background and the grounds previously submitted to the Director, the Board and the Court in support of his non-refoulement claim.  The applicant further advanced various grounds complaining the Board’s decision[1], in gist, as follows :

(a)  The Adjudicator evaluated the key evidence in an unfair manner and wrongly rejected the applicant’s evidence at the Board’s hearing.

(b)  The Adjudicator mischaracterized the evidence and adopted a flawed approach in determining the plausibility of the applicant’s evidence especially on his role in the Bangladesh National Party and the risk of harm that might be inflicted by rival political party if he were to refoule to Bangladesh.

(c)  The Director failed to consider Country of Origin Information (“COI”) in relation to country condition, in particular, the availability of state protection and the possibility of internal relocation.

(d)  The Court of First Instance failed to apply the necessary scrutiny to the findings of the Board’s decision and to discharge its duty to comprehensively consider the lawfulness or fairness of the decision by way of judicial review.

4.  The Registrar directed that unless the court otherwise directs, the notice of motion shall be determined on the papers only without an oral hearing.  As it is appropriate to do so, this application is processed on papers without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, 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 Court of Final Appeal for decision.

6.  In our judgment, none of the grounds relied upon by the applicant in this application pinpointed any error of law or raised any discernible ground to reverse our judgment and therefore, those grounds are not valid grounds of appeal.  As explained at [25] to [27] of our judgment, we did not see any justified public law grounds to interfere with the Board’s decision and we were also satisfied that the Judge’s findings in the Decision were without flaw. 

7.  For the reasons that we gave in our judgment of 11 August 2020, we do not see any prospect of success in the applicant’s intended appeal against the Judge’s decision and order.  None of the questions raised by the applicant in the notice of motion and his written submissions involves an arguable point or a question of great general or public importance.  We do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b) either.  The statutory criteria for granting leave to appeal to the Court of Final Appeal is not met.

8.  Accordingly, we refuse to give the applicant leave to appeal to the Court of Final Appeal and dismiss his notice of motion.

[1] [16] to [29] of the applicant’s written submissions