Re Rahman Mojibur

Judgment Date09 April 2021
Neutral Citation[2021] HKCA 492
Judgement NumberCACV497/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV497/2020 RE RAHMAN MOJIBUR

CACV 497/2020

[2021] HKCA 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 497 OF 2020

(ON APPEAL FROM HCAL 1281 OF 2018)

________________________

RE: RAHMAN MOJIBUR Applicant

________________________

Before: Hon Au JA and Coleman J in Court

Date of Hearing: 29 March 2021

Date of Judgment: 9 April 2021

____________________

J U D G M E N T

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Hon Coleman J (giving the Judgment of the Court):

1. This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 2 June 2020 refusing to grant leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 453.

2. The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 22 June 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3. The applicant filed his Notice of Appeal on 21 September 2020. He also filed his (handwritten) skeleton submissions on 9 February 2021 as directed by the Registrar of Civil Appeals. By a letter dated 21 September 2020, the applicant gave consent to the appeal being heard by a two-member court.

A. Background

4. The applicant is a national of Bangladesh. He entered Hong Kong on 30 March 2015 illegally and was arrested on 2 April 2015. On 4 April 2015, he lodged a non-refoulement claim.

5. The details of the applicant’s claim and his personal background were set out in paragraph 7 of the Director’s Decision, and paragraphs 9-10 of the Board’s Decision.

6. The applicant claimed that he would be harmed or killed by Sadek Khan (“SK”) and his associated Awami League (“AL”) members because of the applicant’s support for Bangladesh Nationalist Party (“BNP”). He also feared that his creditors would hunt him down for his default in repaying the loans. The applicant claimed to hold the position of publicity secretary of young wing of BNP and his family had been supporting BNP. Around 3 to 4 months before the general election in 2008, SK and his associates harassed, threatened and extorted the applicant. The applicant subsequently left his home village. Upon his return in 2014, there was a fight between BNP and AL members which the applicant’s brother was assaulted and injured. In around October 2014, the applicant had a heated argument with the BNP members but he was not physically hurt. Eventually, out of fear, the applicant fled to Hong Kong for protection.

B. The Director’s Decision and the Board’s Decision

7. The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4]. The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8. The applicant appealed the Director’s Decision to the Board. A hearing for the appeal was held on 19 April 2018, during which the applicant answered questions from the Board with the assistance of an interpreter. Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

9. The Board reminded itself of the applicable legal principles before reaching the conclusion that the applicant was not a credible witness. It found the applicant’s evidence to be inconsistent, vague and implausible. On this basis alone, the Board dismissed his appeal (paragraphs 23-53 of the Board’s Decision).

C. The Deputy Judge’s Decision

10. The applicant filed a Form 86 on 4 July 2018 seeking leave to apply for judicial review against the Board’s Decision. His grounds of review therein were succinctly summarized at [11] of the Deputy Judge’s Decision as follows:

“11. On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) misdirection in the law in the adjudicator misdirecting himself in the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial ground to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weighton relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and to make finding of fact as to whether a consistent pattern of gross and mass violation of human rights exists in Bangladesh;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

11. After hearing the applicant in court and considering the documents, the Deputy Judge refused to grant him leave with reasons set out at [12]-[19] of the Deputy Judge’s Decision:

“12. These are however all very broad and vague assertions of the...

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1 cases
  • Re Rahman Mojibur
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 30 July 2021
    ...for leave to appeal to the Court of Final Appeal against this Court’s (Au JA and Coleman J) judgment of 9 April 2021 (“the Judgment”) [2021] HKCA 492. In the Judgment, we dismissed the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan dated 2 June 2020, refusing ......

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