RE HASAN MD MEHEDI

CACV 522/2018

[2019] HKCA 203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 522 OF 2018

(ON APPEAL FROM HCAL NO. 302 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 against the decision of Deputy High Court Judge Josiah Lam (‘Judge’) given on 5 October 2018 in which he refused to grant leave to the applicant to apply for judicial review.

2)  Factual background

2.1  The applicant is a Bangladeshi national who allegedly entered Hong Kong illegally on 27 December 2015.  On 13 October 2016, he filed his non-refoulement claim form to the Immigration Department.

2.2  The basis of the applicant’s claim is that he would be harmed or killed by the Awami League (‘AL’) if he returned to Bangladesh as he supported the Bangladesh Nationalist Party (‘BNP’).

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 of Immigration (‘the Director’) decided against the applicant’s torture claim on 1 June 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 Torture Claims Appeal Board (‘the Board’) on 7 June 2017.  After a hearing held on 11 January 2018, the Board dismissed the applicant’s appeal on 14 February 2018 (‘the Board’s Decision’).

4.2  The adjudicator of the Board found that the applicant’s case was inconsistent both on paper and during the hearing.  He found it incredible that his explanation of discrepancies in his information on paper was due to mistakes that his friend who wrote on his paper application on his behalf.  He found the applicant exaggerated his case of being an important figure in BNP, and that he had suffered injury serious enough to reach the minimum level of severity as envisaged by BOR 3. He also noted that the applicant did not seek non-refoulement protection soon after arriving in Hong Kong.  He found that internal relocation was possible for the applicant.

5)  Decision of the Judge

5.  The Judge found that all the alleged grounds for judicial review from the applicant were without merit.  There were no errors of law, procedural unfairness or irrationality in the decisions of the Director and the Board.  The Judge found that many of the alleged grounds for judicial review were irrelevant, such as country of origin or state acquiescence argument, when the Board based its decision in refusing the applicant’s appeal on the applicant’s lack of credibility.

6)  Grounds of appeal

6.1  The applicant in the Notice of Appeal stated various general grounds of appeal.  They include alleging that the Judge failed to make sufficient country of origin inquiry; the Judge failed to explain why he preferred country of origin information that was not in the applicant’s favour; the Judge failed to critically examine and cherry picking country of origin information; the Judge failed to consider extended state acquiescence; the Judge failed to consider psychological harm inflicted.

6.2  In his two-page skeleton submission in support of his appeal, the applicant repeated factual matters of the Awami League now being in power in Bangladesh which affects his safety on his return.  He complained that the Board and the Director failed to make sufficient country of origin inquiries.  He complained in essence that the trier of fact did not use up to date country of origin information.  He complained that they had failed to consider his fear of safety now that the AL is in power. He complained that the Board and the Director did not consider BOR 2 provisions.  He complained there was no proper explanation to refuse his torture claim.  He complained that there was no consideration of extended state acquiescence.

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.  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  The applicant in his written submissions stated that in December 2018, the Awami League won the election again in Bangladesh.  He believed that his life will be in danger if he is to return home.  At the hearing of the appeal, he stated that his family told him his life is still in danger and his brother is still missing.  There is no evidence that the new event of the Awami League winning the election carries the impact as suggested by the applicant.  It also has no impact at all on the Board’s important finding of the applicant’s incredibility when it refused his appeal.  In any event, we take the view that as this new development has not been assessed by the Director or the Board, it is not the role of the Court of Appeal 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 under Order 53, rule 4(1) of the Rules of the High Court : see Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati and Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.  In any event, if this is only a recent development, it has no bearing on the decisions of the Director, the Board and the Judge who decided the case on the facts as presented before them.  The relief in such a situation is for the applicant to make a subsequent claim to the Director under section 37 ZO of the Immigration Ordinance (Cap. 115) on the ground of significant change of circumstances.  It is for the Director to decide whether the new development merits a reconsideration of his earlier decision.  

7.3  Accordingly, the appeal is dismissed.