Re Khan Abu Said

CACV 340/2019

[2019] HKCA 1355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 340 OF 2019

(ON APPEAL FROM HCAL NO. 464 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2The applicant failed to comply with the directions of the Registrar of Civil Appeals of 14 August 2019 and did not file his skeleton submissions within the time specified.  As a result, the hearing fixed for 12 November 2019 has been vacated.  We will deal with the appeal on paper.

2)  Background

2.1The applicant is a national of Bangladesh.  He entered Hong Kong illegally.  He surrendered to the Immigration Department and he subsequently raised a non‑refoulement claim on the basis that he would be harmed or killed by members of the Chatra League and the Bangladesh Nationalist Party.

2.2The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL‑1 Form.

3)  The Director’s Decision

3.The Director of Immigration decided against the applicant’s claim on 29 November 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), 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.  After a hearing held on 9 November 2017, the Board dismissed the applicant’s appeal against the Director’s decision on 22 December 2017.

4.2The Board found the applicant to be a poor witness.  Although he indicated to the Board that he was willing to answer questions put to him by the Board, he displayed a reluctance to do so as the hearing progressed.  The Board found his evidence to be generally vague and lacking in appropriate detail.  When he was pressed for detail he provided limited response.  The Board found that his responses were reactive rather than coming from real life experience.

5)  Decision of the Judge

5.1The applicant complained before the Judge that :

(1)  the Director and the Board reached their decisions wrongly;

(2)  the decisions were Wednesbury unreasonable;

(3)  the fact finders failed to find that his right to life must be protected from extra-judicial killings;

(4)  the Board failed to give him sufficient time and opportunity to arrange the relevant evidence.

5.2The Judge held that the applicant’s complaints are all vague and broad containing only several key words and phrases with no particulars or specifics on how they applied to the applicant’s case, or how the Director’s Decision or the Board’s Decision erred.  The arguments were not reasonably arguable.   

6)  Grounds of appeal

6.It is difficult to comprehend the handwritten grounds of appeal of the applicant.  Doing the best we can, the applicant stated in his notice of appeal the following grounds :

(1)  The applicant was not satisfied with the decision.  He wanted to appeal for a ‘better’ and ‘correct’ judgment.

(2)  The Judge failed to give reasons for refusing the applicant leave for judicial review.

7)  Our view

7.1We will repeat the approach of this Court in dealing with cases of this nature :

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or otherwise plainly wrong.

(3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3It is the applicant’s bare allegation unsupported by any evidence as to how the Judge had failed to deal with his complaints or failed to give reasons for his decision.  Again, we agree with the Judge that these are allegations so broad, so vague and so lacking in particulars that it is impossible for the Court to have any reasonable assessment of these complaints.   

7.4We see no error in the Judge’s decision. Accordingly the appeal is dismissed.

Applicant, unrepresented, acting in person