Re Salim Ahmed Alias Md Salim

CACV 432/2019

[2020] HKCA 244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 432 OF 2019

(ON APPEAL FROM HCAL 910/2018)

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Before: Hon Lam VP and Marlene Ng J in Court

Date of Hearing: 16 April 2020

Date of Judgment: 23 April 2020

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 3 September 2019 refusing to grant leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Director of Immigration (“the Director”) dated 31 October 2017 rejecting the applicant’s claim for non-refoulement protection in Hong Kong, as well as the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 9 May 2018 upholding the decision of the Director.

Background

2.The applicant is a national of Bangladesh.  He first arrived under the identity of Md Salim in Hong Kong on 14 May 2004 and was granted extension to stay as a visitor until 10 September 2004.  He did not depart and overstayed illegally.  He was later arrested by the police, and subsequently convicted of the offence of breach of condition of stay by overstaying.  He was deported back to Bangladesh on 5 November 2004.

3.About 8 months later, on 7 July 2005, he arrived in Hong Kong under the identity of Ahmed Salim.  He returned to Bangladesh once in November 2005 and came back on 20 December 2005.  He then travelled between Hong Kong and the mainland China several times so as to extend his permission to stay as a visitor in Hong Kong.  His last arrival was on 2 March 2006, and he was allowed to stay until 5 March 2006.  He did not depart upon the expiry of his permission to say and again overstayed illegally.  He was arrested by the police on 28 September 2006.  He was convicted of making a false representation to immigration officer and was sentenced to imprisonment of 9 months. 

4.The applicant raised his torture claim on 30 January 2007, and the claim was rejected by the Director on 23 October 2013.  He did not appeal to the Board against this decision of the Director.  He instead raised a non-refoulement claim on applicable grounds other than the torture risk[1] by a written signification dated 28 October 2013.

5.The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by people connected to his business supplier, because of his inability to settle the outstanding debt.  His creditor threatened that a case would be filed with the police and the Rapid Action Battalion (“RAB”) would be engaged to harm him. The factual background of this case was set out by the Judge at [1] – [10] of the Form CALL-1 ([2019] HKCFI 2163).

6.By a notice of decision 31 October 2017[2] , the Director informed the applicant that, since his torture claim had already been rejected, his torture risk would not be assessed under the unified screening mechanism.  After assessing the applicant’s claim on the other applicable grounds, namely the risk of the violation of the absolute and non-derogable rights under the Hong Kong Bill of Rights (particularly, the BOR 2 risk[3] and the BOR 3 risk[4] ), and the persecution risk[5] , the Director determined the claim against the applicant.

7.The applicant lodged an appeal/petition to the Board against the said decision of the Director.  An oral hearing was held on 4 May 2018, during which the applicant elected to answer questions put by the Board.  By a decision dated 9 May 2018[6] , the Board dismissed the applicant’s appeal and confirmed the decision of the Director.  Like the Director, the Board proceeded with the assessment based on applicable grounds other than the torture risk[7] .  The Board considered that the dispute between the applicant and his supplier was a commercial one without any criminal elements.  Furthermore, given the unreliability of documents[8] submitted by the applicant, the applicant’s use of false identity to enter Hong Kong[9] , and the implausibility of the threat of the engagement of RAB[10] , the Board found that the applicant was not a credible witness.  As a result, the Board rejected substantially all the factual basis underlying the applicant’s claim[11] and found that there would not be any real risk of harm if refouled.  At the hearing, the applicant also raised a new issue that, if refouled, he would be suspected to be a terrorist by the Bangladeshi authority[12] .  The Board rejected this new issue as it being remote and speculative[13] . 

The Judge’s decision

8.On 23 May 2018, the applicant applied to the court for leave to apply judicial review against both decisions of the Director and the Board.  In the Form 86, the applicant put forth various complaints regarding the Director’s decision.  The applicant further stated that the Board failed to attain high standard of fairness in its decision.

9.An oral hearing was originally scheduled to be held on 22 August 2018.  The applicant did not attend the hearing due to a medical appointment.  The hearing was re-fixed to 27 September 2018, which the applicant duly attended.  

10.As mentioned earlier, the Judge refused to grant leave to the applicant to apply for judicial review.  Referring to Re Moshsin Ali [2018] HKCA 549, the Judge held that the Director’s decision was no longer susceptible to judicial review once an appeal to the Board was pursued and that he would only deal with the application relating to the Board’s decision only[14] .

11.The Judge set out the following reasons in refusing leave for judicial review against the Board’s decision (footnote omitted):

“ 39. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

40. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘ 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 scrutinising the decision of the Board due to the seriousness of 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 the decision of the Board.’

41. The Applicant complained the Adjudicator failed to attain the high standards of fairness and his decision was unreasonable. He held out nine points. (See para 38 above.)

42. Point 1. The Applicant was arrested by the police in Hong Kong on 28 September 2006. He might have indicated to the Director of his intention to raise a torture claim in that year but on record his formal application was made on 30 January 2007. The Adjudicator was not mistaken about the year.

43. Point 2. The Applicant said he had suffered severe physical harm and mental stress. There was no credible proof.

44. Point 3 and Point 4. The Applicant had used two different names to enter Hong Kong with different dates of birth. He was convicted of making false statements when he entered Hong Kong under the first identity. The Adjudicator was entitled to consider the Applicant’s use of a false identity to come to Hong Kong in 2004 as a factor undermining his credibility. The Applicant’s birth certificate would not help him.

45. Point 5. The Adjudicator indeed wrongly penned ‘CM’ for ‘PC’ in para 46 of his decision but he had stated the facts in other places which said of the 2003 threat. The mistake was insignificant. As to which year RAB was established, there was no evidence to show the Adjudicator was mistaken. In fact, the Applicant told the Adjudicator that he himself made a mistake of the year in which PC uttered the RAB threat. He changed to tell the Adjudicator it was 2004 instead of 2003.

46. Point 6. The Applicant said he did not tell the Adjudicator that people returning from Hong Kong to Bangladesh were missing. He actually told the Adjudicator that many people in Bangladesh were missing after they had returned home because the police suspected them to be terrorists. There was no evidence to show the Adjudicator was mistaken. But even if the Adjudicator misheard the Applicant here, it did not bear any significance to the Adjudicator’s decision.

47. Point 7. The Applicant failed to adduce evidence to show the Adjudicator wrongly understood the legal system in Bangladesh.

48. Point 8. The Applicant said he did not speak to the Adjudicator about any 2006 bomb blast. He actually told him about a 2016 terrorist attack in a cafe. Again, there was no evidence to show the Adjudicator was mistaken. And even if the Adjudicator misheard the Applicant about the year, it did not bear any significance to the Adjudicator’s decision either.

49. Point 9. The Applicant said if the Adjudicator could make so many errors as pointed out by him, it was not strange that he (the Applicant) would also make mistakes. I do not agree with the Applicant that the Adjudicator had made many mistakes. The Adjudicator only wrongly penned ‘CM’ for ‘PC’ in para 46 of his report but that slip of the pen bore no significance to the Adjudicator’s finding of the Applicant’s credibility. After considering the facts in depth, the Adjudicator did not find the Applicant credible. He did not accept the Applicant faced any persecution risk, BOR2 risk or BOR3 risk.

50.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable.  He made no errors of law and there was no procedural unfairness.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator’s report showed he was acquainted with the facts.  He considered the Applicant’s claim carefully and applied the law correctly.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

The Appeal

12.The applicant filed a notice of appeal against the Judge’s decision on 17 September 2019.  In it, the applicant put forth the following grounds of appeal:

“ The decision maker did not consider properly my fear and failed to conduct sufficient enquiry into the relevant country of origin conditions.

Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision.

Failing to consider of the facts raised as part in my claim and failure to call of physical and psychological evidence on my behalf.

Failure to apply or properly apply para 2 of the UN Committees General Comment No 2 concerning the obligation of a signatory state to adopt reforms or means of redress aimed at ensuring the safety of its citizenry which are ‘effective’ in any event.

No sufficient basis to conclude that I would not be at risk of being subjected to torture CIDTP upon refoulement.

Without providing reasons dismiss my evidence. It is equally unlawful. The Court of First Instance further failed to provide any reason on this point and as such failed to discharged its duty effectively.

The Court of First Instance failed to apply the necessary scrutiny in relation to this reasoning by the Adjudicator.

For the reason above the matters involved within this appeal are of significant public importance.” (sic)

13.The applicant lodged his skeleton submission on 18 December 2019.  After repeating and elaborating his grounds of appeal, the applicant submitted that his claim was supported by Njamba v Sweden[15] as the risk he faced being foreseeable, real, personal and present, as well as the UN Committee Against Torture General Comment No 2, para 6 & 7.

14.By a letter dated 17 September 2019, the applicant gave consent that this appeal might be heard before a 2-member court.

15.We heard this appeal on 16 April 2020.

General principles

16.Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(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 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

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

Discussion

17.In the present case, the Board rejected the applicant’s claim because of its adverse finding on the applicant’s credibility.  As correctly pointed out by the Judge, assessment of evidence and the risk of harm are within the province of the Board.  The court will not intervene with such findings unless there are public law grounds to reverse them.  Having considered the materials with rigorous examination and anxious scrutiny, the Judge could not find any reasonably arguable basis to challenge the findings of the Board.

18.In our view, nothing in the notice of appeal or in the applicant’s skeleton submissions constitute valid ground to reverse the Judge’s decision.  We note that the applicant had not hitherto raised the complaint regarding the insufficient inquiry of the country of origin information.  As explained above, this Court will not generally entertain any argument, which are fact-and-evidence sensitive and had not been canvassed at the Court of First Instance.  This complaint must therefore be rejected.

19.The complaint regarding the applicant’s physical and psychological evidence was essentially a regurgitation of the argument that had already been advanced before, and duly rejected by, the Judge.  We agree with the Judge’s observation in this respect.  Given the facts of this case, there is no basis to call for physical and psychological evidence on the applicant’s behalf.  This complaint must also be rejected.

20.The remaining grounds are vague and general, and want of particulars in support.  As this Court had said previously, general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327. 

21.It is patently wrong to suggest that the Judge failed to give reasons or to discharge his duty effectively. 

22.The applicant failed to persuade us there was any error on the part of the Judge’s decision.  We agree with the Judge that there was no reasonable prospect of success in the intended judicial review, and that leave to apply for such must be refused.

23.We dismiss the appeal accordingly.

The applicant appearing in person