RE ANOWAR MD

CACV 72/2021

[2021] HKCA 1195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 72 OF 2021

(ON APPEAL FROM HCAL NO. 1607 OF 2019)

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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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge P. Li of 9 February 2021 in which he refused to grant leave to him to apply for judicial review.

1.2  This appeal was scheduled to be heard on 2 August 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 3 June 2021, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the Court informed the applicant by letter dated 8 July 2021 that the hearing would be vacated and the Court would deal with this appeal on paper.  After the case was vacated, the applicant filed his submission on 27 July 2021.  The Court will take into consideration his submission in our decision.

2)  Factual background

2.1  The applicant is a national of Bangladesh. He first entered Hong Kong with his Bangladeshi passport and then departed to the Mainland in October 2005.  He then entered Hong Kong and he overstayed.  On 29 December 2006, he applied for non-refoulement protection.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by members of the Awami League for his involvement in the Bangladesh Nationalist Party.

2.3  The background facts have been summarized in the decision of the Judge at [4]-[19].

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 9 August 2018.  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 Torture Claims Appeal Board (‘the Board’) on 21 August 2018.  After a hearing held on 20 March 2019, the Board dismissed the applicant’s appeal on 27 May 2019 (‘the Board’s Decision’).

4.2  The Board found that there were a considerable number of inconsistencies in the applicant’s account of events.  Overall the Board formed the impression that the applicant was not giving an entirely truthful account.  The applicant was evasive, confused and incoherent.  The applicant provided several different version of events.  The Board found it implausible that the applicant could remain undiscovered in Bangladesh for three or four years while his enemies as well as the police were looking for him everywhere.  It was implausible that his enemies were still looking for him 17 years later.  The applicant gave the Immigration Department and the Board different reasons why he was not able to provide supporting documents for his claims.  The applicant delayed over 12 months before submitting his non-refoulement claim.

5)  Decision of the Judge

5.1  The applicant filed his Form 86 supported with grounds which appeared vague and broad.  In his supporting affirmation, he pointed out that the Board did not give him an opportunity to put forward his submission.  He complained that the Board relied on unreliable sources which were hearsay in nature.

5.2  The Judge held that the applicant did not specify any error in the decision of the Board.  He held that the Board set out the evidence in great detail.  The Board casted doubt on the applicant’s credibility.  The Board was not persuaded that the applicant would suffer harm given the overall evidence if refouled.  There was no need for the Board to consider country of origin information.  There was no reasonably arguable basis to challenge the Board’s decision.

6)  Grounds of appeal

6.1  The applicant in the notice of appeal stated that he will face hardship if refouled.  He stated that the Board has relied on sources of information which were not officially recognized or were simply hearsay.  He stated that outdated cases were relied upon, and groundless speculations were made against him.

6.2  In the applicant’s written submission, he stated general legal principles that were used in non-refoulement cases without explaining how those principles applied to the particulars of his case.

7)  Our view

7.1  We are of the view that the applicant’s submissions consist of bare allegations without particulars or specifics.  The applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  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  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

7.3  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.