Re Ahammed Mamun

CACV 428/2018

[2018] HKCA 929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 428 OF 2018

(ON APPEAL FROM HCAL 986/2017)

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Before:  Hon Cheung JA and Barma JA in Court

Date of Hearing:  4 December 2018

Date of Handing Down Judgment:  10 December 2018

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 24 August 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 24 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 6 May 2016 and 13 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 26 August 2015 illegally and was arrested by the police on on the same day.  He lodged a non-refoulement claim on 23 September 2015. 

3.The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.By a Notice of Decision dated 6 May 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

5.By a Notice of Further Decision dated 13 July 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 September 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 24 November 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.At [43] of the Board’s Decision, the Board found that the applicant’s case was not credible.  The Board was also satisfied at [61] that state protection would be available for the applicant and at [62] that internal relocation would be viable.

The deputy judge’s decision

8.The applicant filed a Form 86 on 30 November 2017 which contained the following grounds for judicial review:

(1)  that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement;

(2)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)  that the Board’s decision to refuse his appeal were unreasonable or irrational in the public law sense or is the result of procedural error or unfairness; and

(4)  that the Board failed to meet the greater care and duty owed to a self-represented claimant.

9.In the affirmation in support of the leave application dated 30 November 2017, the applicant expanded on the grounds for judicial review.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [17] of the CALL-1 Form:

“12. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or how his appeal was dealt with in a procedurally unfair manner, or in what way was the Board’s decision unreasonable or irrational in the public law sense, or how the Board failed to meet the care and duty in dealing with his appeal. There is simply no elaboration whatsoever by the applicant of any of these complaints.

13. The only other complaint which he has elaborated was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board and with the majority of the documents in English thereby given him insufficient time to prepare for his appeal or to find an interpreter to assist him.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they were already made available to him earlier when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that he was able to present his appeal without any difficulty before the Board with the assistance of an interpreter during which he never raised any issue about the hearing bundle or requested for further time for his appeal. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

15. Given the fact that it was found by both the Director and the Board in their decisions that the risk of harms from the AL people is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Bangladesh, there is simply no justification for affording him with non-refoulement protection in Hong Kong, and no reason for this court to interfere with their decisions: see TK v Jenkins [2013] 1 HKC 526.

16. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds for appeal

11.In the Notice of Appeal dated 31 August 2018 the applicant stated that:

“I seek to challenge the judgment para 7…In Horvath (1999) INLR 7 that such an approach is deficient was reiterated”

The applicant also set out an extract from paragraph 36 of the decision of the House of Lords in Horvath (reported at [2001] 1 AC 489). 

12.In his skeleton submissions dated 29 October 2018, the applicant submitted that the judge accepted at [7] of CALL-1 Form that there was a risk of harm upon his return but the risk was low.  He relied on a newspaper article in January 2015 to show that he will be seriously injured by the opposing political party if he returns.  He also submitted that the Board and the judge failed to take into account the dangerous political, social and economic situation in Bangladesh.

13.In his further submission dated 5 November 2018, the applicant also explained why it is not safe for him to return.

14.The applicant agreed by a letter of 31 August 2018 that the appeal could be heard by two judges.  We heard the appeal on 4 December 2018.  At the hearing, the applicant reiterated that it was still not safe for him to return to Bangladesh, but said that he would be willing to return after the situation there improves.

Discussion

15.The only ground of appeal put forward by the applicant is based on a complaint in relation to [7] of the judgment below.  However, that paragraph does not constitute a finding by the judge, but is a summary by the judge of the findings of the Director (which were upheld by the Board, as appears from [10] of the judgment below.)

16.In the court below, the applicant did not specifically challenge these findings by the Director and the Board.  The grounds for judicial review advanced by him were general and broad ones, which the judge was right to reject for the reasons given in his judgment.  It is not now open to the applicant to rely on this different ground on appeal, when it was not advanced in the court below. 

17.In any event, as this court has repeatedly held, the primary decision makers on factual matters are the Director and the Board, and an application for judicial review is not a further appeal against their decisions, but is concerned with the legality of their decisions and the fairness of the process of which they were reached.  Like the judge, we can see no basis for interfering with those decisions.   

18.The matters mentioned by the applicant at the hearing do not constitute a basis for interference with judge’s decision.

19.There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person