RE MD ASHAD HOSSAIN

CACV 539/2020

[2021] HKCA 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 539 OF 2020

(ON APPEAL FROM HCAL 1761/2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the judgment of the court):

Application

1.  Before the court is a notice of motion filed on 20 May 2021 by the abovenamed applicant, applying for leave to appeal to the Court of Final Appeal (“CFA”) against the judgment dated 10 May 2021[1] of this court (Yeung VP and Lisa Wong J) (“Judgment”), dismissing the applicant’s appeal from a decision dated 27 May 2020[2] by Deputy High Court Judge K W Lung, refusing him an extension of time for an application for leave to apply for judicial review of the decision dated 20 December 2017 of the Torture Claims Appeal Board (“Board”) concerning his non-refoulement claim (“Claim”).

Paper disposal appropriate

2.  Pursuant to the direction of the Registrar of Civil Appeals, unless this court otherwise directs, the notice of motion shall be determined on paper without an oral hearing.  We agree with the Registrar that paper disposal is appropriate in this case.

Statutory threshold for leave to appeal to the CFA

3.  Under s 22(1)(b) of the Court of Final Appeal Ordinance (Cap 484), an appeal shall lie to the CFA at the discretion of the Court of Appeal (“CA”) or the CFA from any civil judgment of the CA if 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 CFA for decision.

Applicant’s contentions in support of leave to appeal to CFA

4.  First, in seeking leave to appeal to the CFA, the applicant asserted in the notice of motion as follows (sic):

“I would like to infomr 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 claim. Acual life occur different situation then what is mentioned in the COL Information. The Officer and cours prefers to ignore the overwhelming of the evidence of this violence towards minorities searching our unrealistic silver lining. The Decision is betrary a bias and formula approach unlikely fairly access the danger of my life and clearly not reasonable.”

5.  Second, on 28 May 2021, the applicant lodged his written submission that was a somewhat expanded version of the skeleton submission lodged on 11 February 2021, a summary of which can be found in [16] of the Judgment.  By the later submission, the applicant added the following: (1) a one-sentence assertion[3] that the Board had acted in a procedurally unfair manner by not properly assessing his credibility; (2) statement of the trite principle that the court may intervene with the exercise of an administrative discretion that is beyond the range of responses open to a reasonable decision-maker[4] (but without explaining in any way how it may be material to his proposed appeal to the CFA); and (3) mention of section 37ZT of the Immigration Ordinance (Cap 115)[5] (which clearly has no relevance as the applicant had not been late in appealing the Director of Immigration’s rejection of the Claim to the Board).

Discussion

6.  The applicant has plainly not raised any issue for determination by the CFA, whether of great, general or public importance or otherwise.

7.  Nor do we see any scope to grant leave under the “or otherwise” limb.

8.  Insofar as the applicant is suggesting in his notice of motion that the Department of Immigration officer and the Board adjudicator involved in the screening of non-refoulement claims and the judges involved in determining the judicial proceedings arising therefrom have approached their tasks with a pre-disposition for dismissal with reference only to generic country of origin information (“COI”) without regard to the particular facts and evidence in support of the cases before them, the applicant has not advanced any or any proper basis for so suggesting. 

9.  To the contrary, in the applicant’s case, as noted in [12] of the Judgment, the Board found the applicant an incredible witness and rejected the Claim in its entirety as “[h]is account was so vague, despite repeated questioning and so inconsistent with his previous claim on material points, including the introduction of an entirely new basis of claim never previously mentioned”.  The dismissal of the Claim on the fact was well within the province of the Board.  The Board arrived at such decision after hearing the applicant and testing his evidence.  The Board did not in fact refer to or rely on any COI in assessing the applicant’s credibility.  As stated in [5] above, the applicant has, for the purpose of seeking leave to appeal to the CFA, made a bare assertion in his written submission that the Board had failed to properly assess his credibility.  However, he has not given any particulars as to how the Board had allegedly so failed.  The Board dealt with the applicant’s appeal in detail in a 10-page decision.  In particular, in paragraphs 21 to 42, the Board analysed the applicant’s testimony given, not just before it, but at different stages of the screening process, and provided detailed reasons to explain why it rejected the Claim on the fact and evidence.  We can discern no ground to question the Board’s analysis.

10.  As for the reference to “violence towards minorities” in the notice of motion, it is misplaced.  As described in [3] of the Judgment, the Claim was not at all premised upon the applicant belonging to a minority group suffering violence.

11.  Regarding the courts’ role, a judicial review is not a channel for a reconsideration of facts.  The Court of First Instance (“CFI”) will scrutinise the Board’s decision for any errors of law, procedural unfairness or irrationality while the CA will examine the CFI judge’s decision in light of the ground(s) of appeal advanced by the applicant, which should be premised upon the CFI judge having erred in law, omitted to consider a relevant matter or been otherwise plainly wrong.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  The applicant has not in his notice of motion or written submission (or the notice of appeal or written submission previously before us) identified any such basis for interference with the Deputy Judge’s decision.

12.  As neither of the statutory criteria under s 22(1)(b) for leave to appeal to the CFA is met, we dismiss the notice of motion.

[1] [2021] HKCA 650

[2] [2020] HKCFI 941

[3] In paragraph (5).

[4] Based on Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517.

[5] In paragraph (8).