RE KHAN IMRAN

CACV 154/2018

[2018] HKCA 725

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 154 OF 2018

(ON APPEAL FROM HCAL 556/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

1.  By our judgment dated 27 August 2018 ([2018] HKCA 559), we dismissed the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 4 May 2018 ([2018] HKCFI 874) refusing leave to apply for judicial review.

2.  In his notice of motion dated 3 September 2018, the applicant gave these grounds for seeking leave to appeal to the Court of Final Appeal:

“1. The Court was erred in commenting that ‘Judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh in the absence of any legal error.’ The legal error, as I respectfully submit, is that the Adjudicator has wrongfully exercised his case management power and dismissed my case based on credibility.

2. It is further unfair that the Court is prepared to leave the assessment of credibility solely in the hands of the Adjudicator at the Torture Claims Appeal Board, as the Director of Immigration has never assessed such. It will therefore mean that so long as the Adjudicator at the TCAB determines one to be incredible, the case has no hopes of being appealed against.

3. This is a legal error as the Court should have the duty and interest to ensure that the process has been procedurally fair. The fact that there are no other revenues [sic] for a non‑refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair.

4. I seek reconsideration by the Court.”

3.  In his written submissions dated 16 September 2018, apart from repeating the grounds set out in his notice of motion, the applicant added two additional points:

“5. Furthermore, should the Director be highlighting those parts of the COI that corroborated my claim, including those concerning the ineffectiveness, inefficiency, and even corruption of the Bangladeshi police, it is therefore uncertain as to how the director would have come to the conclusion that state protection is available to me, if the reforms and improvements have not been implemented successfully.

6.  Lastly, should the Deputy Judge feel the lack of authority or jurisdiction to review the supporting documents that were not previously readily available to the Director or the Board, the Deputy Judge should have made a finding that the case be remitted to the Director or the Board for their consideration taking into account the now readily available documents, than to dismiss my case right there.”

4.  It is plain that the applicant’s grounds and submissions only concern case‑specific matters, but involve no issues of great general or public importance – the statutory criterion for granting leave to appeal to the Court of Final Appeal: section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484).

5.  In any event, for the reasons we gave in our judgment, we do not consider the proposed grounds of appeal to be reasonably arguable.  The appeal before the board is a de novo hearing.  The board is entitled to come to its own views on the facts of the case.  In paragraphs 14 to 16 of our judgment, we explained why the board’s determination on the credibility of the applicant was fatal to his claim, and what is and what is not the proper function of a judicial review.  In paragraphs 17 to 19 of our judgment, we dealt with the COI material.  Despite what the applicant now says in his grounds and submissions, we see no ground for interfering with the board’s or the director’s decision by way of judicial review.

6.  As for paragraph 6 of the written submissions, we note that this is a new ground not relied on in the appeal to us from the judgment of the deputy judge.

7.  There is no basis to grant leave on the “or otherwise” limb.

8.  Accordingly, we dismiss the application for leave to appeal to the Court of Final Appeal.