RE HOSSAN MOHAMMAD ANWAR

CACV 97/2019

[2019] HKCA 691

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 97 OF 2019

(ON APPEAL FROM HCAL NO. 1124 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

1.1  This is an appeal by the applicant against the decision of Deputy High Court Judge K. W. Lung given on 22 February 2019 in which he refused to grant leave to the applicant to apply for judicial review.

1.2  This appeal was scheduled to be heard on 18 June 2019.  Despite the directions contained in the letter from the High Court to the applicant dated 19 March 2019, the applicant failed to lodge the skeleton argument by 21 May 2019.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Factual background

2.1  The applicant is a national of Bangladesh.  He came to Hong Kong through the Mainland illegally on 10 March 2015 and was arrested on the same day.  He raised a non‑refoulement claim on 13 March 2015.  He was also convicted of taking employment in Hong Kong illegally and sentenced to 15 months’ imprisonment.

2.2  The basis of the applicant’s claim is that he was a supporter of the Bangladesh Nationalist Party, he would be harmed or killed by a supporter of the rival Awami League (‘AL’) named Foyez and other people of AL.

2.3  The background facts have been summarized in the decision of the Judge at [2] to [4].

3)  The Director’s Decision

3.  The Director decided against the applicant’s torture claim on 24 November 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (risk of 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.  After a hearing held on 18 May 2018, the Board dismissed the applicant’s appeal on 12 June 2018 (‘the Board’s Decision’).

4.2  The Board found that the applicant’s case was a dispute over land between himself and Foyez, and it had nothing to do with political differences between them.  Foyez had no intention of killing the applicant.  The injuries that the applicant alleged did not amount to torture.  Relocation was also possible.

5)  Decision of the Judge

5.  The Judge held that there was no reasonable chance of success in his intended judicial review.  He held that many of the applicant’s grounds for leave for judicial review were bare allegations. The Board was also entitled to ask the applicant for evidence to prove his case, the burden of proof being on him.  The Judge said that he had asked the applicant what evidence he was intending to adduce to the Board and the applicant was unable to answer.  

6)  Grounds of appeal

6.1  The applicant in the notice of appeal referred to the grounds of his appeal in his supporting affirmation.

6.2  The applicant in his supporting affirmation, without elaboration, stated that the Judge was wrong in law in holding there was no state acquiescence, and that the Judge failed to give detailed reasons. 

7)  Our view

7.1  We are of the view that the applicant’s appeal is without merits.  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 of 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].  None of these errors exists in this case.

7.2  Accordingly, the appeal is dismissed.