Case Document

100%Judiciary

CACV 435/2018

[2018] HKCA 930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 435 OF 2018

(ON APPEAL FROM HCAL NO. 99 OF 2018)

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RE:

RAFIQUL ISLAM

Applicant

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Before:

Hon Cheung and Barma JJA in Court

Date of Hearing:	4 December 2018
Date of Judgment:	10 December 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) Appeal from First Instance Judge

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 24 August 2018 in HCAL 99/2018 refusing leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (the ‘Board’) dated 8 January 2018.

2) Background

2.1The applicant is a Bangladesh national who entered Hong Kong legally on 15 February 2006. The applicant overstayed since 2 March 2006. He was arrested by the police on 25 June 2006. He raised his torture claim on 28 June 2006, and lodged his second and current non-refoulement claim on 22 August 2013 (‘supplementary claim’).

2.2The applicant claims that if he were refouled to Bangladesh, he would be at risk of death or serious harm at the hands of the Bangladesh Nationalist Party (‘BNP’), as a result of his support for the Awami League (‘AL’). He asserts that State protection is not available to him in Bangladesh. He applies for international protection.

2.3The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1569. We shall not repeat them here.

3) The Director’s Decision

3.The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 23 December 2016. The Director’s Decision covered the applicant’s rights under Article 2 (right to life) (‘BOR 2’) and Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), as well as his other statutory and convention rights against torture and persecution.

4) The Board’s Decision

4.1The applicant appealed against the Director’s Decision to the Board on 5 January 2017. After a hearing held on 13 November 2017, the Board dismissed the applicant’s appeal.

4.2In general, the Board found the applicant to be a very poor witness, his evidence was lacking in appropriate detail and context and seemed generally improvised and during the course of the hearing he demonstrated a clear reluctance to answer any more questions from the adjudicator or provided only the barest of responses. The Board rejected his claim of any real risk of harm to him from BNP supporters if refouled to Bangladesh as not credible.

5) Decision of the Judge

5.1The applicant filed a Form 86 with supporting affirmation seeking leave for judicial review against the Director’s Decision and the Board’s Decision on 22 January 2018. The application before the Judge was dismissed on 24 August 2018 (‘Decision of the Judge’).

5.2It is our view that the applicant had no basis to challenge the Director’s Decision again before the Judge. The applicant had already challenged the Director’s Decision before the Board: Re Moshsin Ali [2018] HKCA 549 at [18].

5.3The Judge decided against the applicant as follows :

‘12. The fact is that the applicant’s claim was rejected by the Board essentially on his credibility that any attempts by him to challenge or criticize any improper reliance of COI seem to me futile and pointless, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the adjudicator’s clear findings against the applicant as to the core of his claim as an important member of AL being pursued by supporters by rival BNP, I am unable to find any basis or merits in any of the grounds of his for interfering with the decision of the Board…’

6) Ground of appeal

6.1The applicant stated in his Notice of Appeal that :

‘ And further take notice that the grounds of this appeal are that

There is an appeal for the decision of Legal Aid and would like the case to be against will that is over…’

6.2The applicant’s skeleton arguments repeated the factual background information of his case in greater detail. Amongst other things, the applicant reiterated again that if he was to return to Bangladesh he would be killed; he stated that his mother told him that BNP members reminded her once or twice per month that they would kill him; he stated that internal relocation is not possible; he relied on COI information; he complained that the Judge did not see certain evidence and he complained that the Board did not follow the law. Although in his written submission the applicant stated that his risk of harm is reduced now because both AL and BNP are working together, he informed us in Court that the statement was a mistake made by the interpreter and he would not rely on it.

6.3In general, the applicant repeated and reiterated that the decision makers were wrong and he was right, without much meaningful justification. He also tried to clarify certain inconsistencies of his case as found by the Board.

6.4At the hearing the applicant stated that he had received a document from UNO telling him that he should not return to Bangladesh. Although he claimed he had submitted that document together with his written submission, this was not so and the Court did not have that document. The applicant said that he did not know what UNO stands for.

7) Our view

7.1The applicant has not provided any reasons for his allegation that the Judge had erred in law. The applicant simply regurgitates what the Board or the Judge determined in their decisions, stating that he disagrees with them but without providing explanation. It is trite that in the determination of an appeal, the Court of Appeal focuses on the decision of the Judge. This Court would only reverse that decision if the applicant can demonstrate that the Judge in exercising the discretion not to grant leave had erred in law. Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board, the Court will not usurp the role of the Board. Assessment of COI materials and risk of harm, state protection and viability of internal relocation are primarily withintheprovinceoftheBoard (and the Director): Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

7.2In our view, the Board dismissed the appeal because it found the applicant to be an incredible witness. The entirety of the applicant’s written submissions is an attempt by him to reargue the matter afresh, and to regurgitate arguments that have already been dealt with and duly rejected by the Board and the Judge.

8) Disposition

8.In our view, there are no reasonable arguable grounds for leave to bring judicial review proceedings to be granted. Accordingly, the appeal is dismissed.