Case Document

100%Judiciary

CACV 482/2019

[2020] HKCA 373

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 482 OF 2019

(ON APPEAL FROM HCAL NO. 63 OF 2018)

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RE:

SORDER MD MIZAN

Applicant

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Before: Hon Yeung VP, Pang JA and Marlene Ng J in Court

Date of Hearing: 18 May 2020

Date of Judgment: 27 May 2020

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J U D G M E N T

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) of 3 October 2019 in HCAL 63/2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh who entered Hong Kong illegally on 16 August 2014 and was arrested by police on 17 August 2014. He was then referred to the Immigration Department for investigation and he raised a non-refoulement claim on the basis that if he returned to Bangladesh, he would be harmed or killed by supporters of rival political party Awami League (“AL”) and/or by the Bangladeshi authorities for being involved in a murder case of an AL member.

2.The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 1785. We shall not repeat the same here.

3.By the Notice of Decision dated 27 March 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

4.The applicant appealed to the Torture Claims Appeal Board (“the Board”). After an oral hearing on 13 November 2017, the Board dismissed the appeal on 8 January 2018. In its decision the Board found no evidence that the applicant had been specifically targeted by the AL supporters and that his injuries received during the clash between supporters of AL and BNP did not attain the minimum level of severity that could be regarded as torture. There was no reliable evidence that the alleged kidnapping of the applicant was conducted by the AL people or that they had any real intention to kill him as otherwise he would not have been released. The Board also found no evidence of any official involvement in any of the incidents against him. Further, there were concerns over the authenticity of those documents produced by him including the police report relating to the charge against him over the death of the AL supporter and that had seriously undermined his claim that he was being pursued by the Bangladeshi police or government. In any event, reliable COI show that Bangladesh has in place the law and legal system that provide for the right to a fair trial whether the charge against him for the death of the AL supporter was false or not. Further, reasonable internal relocation alternatives are available for the applicant to safely return to other part of Bangladesh without any fear of being located by those AL supporters. For the aforesaid reasons, the Board concluded that the applicant had failed to substantiate his non-refoulement claim on all applicable grounds.

The Judge’s Decision

5.On 12 January 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decision of the Board but he did not set out any ground of his intended challenge in the Form. In his supporting affirmation, he merely regurgitated his claim that his life would be in danger in his home country and that he would submit further documents to support his claim.

6.The applicant did not request for an oral hearing, but on 18 March 2019, he had produced some documents to support his case:

a. several blood or haematological reports of a patient with the same name of the applicant;

b. English translation of First Information Report (“FIR”) against the applicant and two other persons for the death of the AL member made by the father;

c. English translation of a Remand Application against the applicant and two other persons for the death of the AL member;

d. English translation of a Warrant of Arrest issued against the applicant; and

e. a reference letter issued by a president of BNP in the Shariatpur District of the applicant.

7.By the CALL-1 Form of 3 October 2019, the Judge found that none of the documents were properly authenticated or notarized as they were all from Bangladesh and they were presented and dealt with by the Director and the Board in the previous interview/hearing. The Judge found that none of the documents would assist the applicant’s case. He then gave his decision refusing to grant leave to the applicant to apply for judicial review and gave the following reasons at [18] – [20] for his refusal:

“18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department, or in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246;Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

19.  In the applicant’s case, as noted above he did not identify any error of law or procedural unfairness in either decision of the Director or the Board, and in the absence of which I do not find any legal basis to challenge their findings. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

20.  In the premises and having considered 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.”

The Appeal

8.In the Notice of Appeal filed on 14 October 2019, the applicant put forward the following grounds of appeal:

(1) The Director paid no regard to the supporting documents submitted by him and he requested an oral hearing to explain his documents to the Court.

(2) His country is in dangerous situation and he would face risk of harm if he were to return to his home country.

9.In compliance with the direction given by Master Au-Yeung on 31 October 2019, the applicant lodged his written submissions on 22 November 2019. He attached two documents namely (i) copy attested and translated copy of warrant of arrest issued by the District and Session Judge Court Shariatpur dated 9 October 2019 and (ii) copy of attested letter from president of Shariatpur District National Party dated 9 October 2019. The said documents supported his case that he had real danger and problem in his home country. He further claimed that the Bangladeshi police could not protect him and his enemies were still looking for him and that he would face risk of life if he were to return to his home country.

10.We heard the appeal on 18 May 2020.

Discussion

11.As this Court repeatedly held that this Court would focus on the decision of the judge and we would only reverse that decision if an applicant can demonstrate that the judge made error of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. The grounds of appeal as set out in the Notice of Appeal did not pinpoint any error of law in the Judge’s decision and therefore are not viable grounds of appeal.

12.Further, the documents attached in the written submissions were previously produced (referred as item (d) and (e) as listed out in [15] of the CALL-1 Form) and considered by the Judge at [16] and [17] of the CALL-1 Form in which the Judge had found that the applicant’s affiliation with BNP was never an issue or in dispute either before the Director and the Board. Further, the Judge had carefully considered and rightly endorsed the Director’s and the Board’s findings that reliable and objective COI showed that the applicant would be afforded a proper and fair trial under an effective legal and court system in Bangladesh for the charge against him for the death of the AL supporter. The applicant merely tried to repeat his case that was canvassed and rejected by the Judge. Having considered the applicant’s case in light of the materials before us, we agree with the Judge’s observations and conclusions.

13.For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.