RE NANNU MD

CACV 3/2019

[2019] HKCA 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 3 OF 2019

(ON APPEAL FROM HCAL NO. 482 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 24 December 2018 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 23 February 2014, he entered Hong Kong illegally from China.  On 11 March 2014, he filed his non-refoulement claim in writing to the Immigration Department.

2.2   The basis of the applicant’s claim is that he is a member of the Bangladesh Nationalist Party and if he is to be refouled back to Bangladesh, he will be harmed or killed by members of the rival Awami League (‘AL’).

2.3   The background facts have been summarized in the decision of the Judge at [1]-[12].

3)   The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 18 April 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘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 against the Director’s Decision to the Board on 26 April 2017.  After a hearing held on 24 July 2017, the Board dismissed the applicant’s appeal on 16 March 2018 (‘the Board’s Decision’).

4.2   The applicant did not give evidence or answer questions before the Board, and had chosen to rely solely on his case on paper.  After an assessment of the applicant’s case, the Board found that even on the applicant’s own account of events, there was no evidence the applicant had been inflicted with ill‑treatment to a minimum level of severity.  The Board found the applicant’s enemies targeted the properties of his family rather than the applicant himself.  The complained situation was not on account of any Convention reasons such as race or religion.  There was no evidence of state involvement.  The Board considered the risk faced by the applicant, if any, was low.  It noted that the applicant had only tried to report the matter to one police officer at a local police station.  The Board studied the relevant country of origin information.  It was satisfied that reasonable state protection was available to the applicant in any event.  The Board also noted the applicant was able to live in Dhaka for some time save for occasional receipt of some alleged threatening calls.  It considered internal relocation was viable in the applicant’s case.

5)  Decision of the Judge

5.   The Judge assessed the applicant’s application for leave for judicial review.  He stated the principle 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 stated that the Court of Appeal has repeatedly stated that high standards of fairness do not prescribe a non-refoulement claimant an absolute right to free legal representation at all stages of the proceedings.  The Judge found that the applicant’s complaint about language problem was without merit, as the applicant either had access to friends who could help with his language understanding.  He also had the assistance of an interpreter while he was legally represented and also he had the assistance of an interpreter before the Director and the Board.  The Judge found that there was no delay in the delivery of bundles to the applicant.  The Judge found that the applicant failed to be specific on what was his complaint about ‘outdated cases’ or ‘information not officially recognized or simply hearsay’.

6)  Grounds of appeal

6.1   The applicant in the notice of appeal filed on 4 January 2019 stated that he will suffer hardship if he is returned to his home country without explaining why.  Again, he stated that the Board has significantly relied on source of news which is not officially recognized or simply hearsay, without an appreciation that the essence of the Board’s rejection of his case was based on his lack of credibility.  He complained again that the cases used (by the Board) were outdated without explaining how they were outdated.

6.2   The applicant’s skeleton submissions lodged on 19 March 2019 also lacked specificity.  It repeated the need for ‘a high standard of fairness’, that the Court must assess with ‘rigorous examination and anxious scrutiny’, and that the Court must give the applicant ‘every reasonable opportunity’ to establish his claim without giving specifics or elaboration.

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.  Many of the grounds of appeal have been considered by the Judge below.  The applicant provided no specifics or elaboration on what were his grounds of appeal.  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 in 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].

7.2   Accordingly, the appeal is dismissed.