Re Chowdhury Abdul Kader

CACV 166/2020

[2020] HKCA 934

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 166 OF 2020

(ON APPEAL FROM HCAL 202/2018)

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Before: Hon Lam VP and Pang JA in Court

Date of Judgment: 19 November 2020

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JUDGMENT

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

Introduction

1.On 1 June 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 2 February 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 15 July 2016 and 13 July 2017 rejecting the applicant’s non-refoulement claim.

2.On 11 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 22 January 2014 and was arrested by police the same day.  The applicant lodged his non-refoulement claim on 25 January 2014.

4.The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members or supporters of the Awami League as he supported their political opponents, the Bangladesh National Party (BNP).  The factual background was succinctly summarized by the Judge in [1] – [6] of the Form CALL-1 ([2020] HKCFI 777).

5.By notices of decision dated 15 July 2016 and 13 July 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The former covered BOR 3 risk[1], persecution risk[2], and torture risk[3], and the latter covered BOR 2 risk[4]. 

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 22 December 2017, which the applicant attended in person.  The Board found that there was no credible evidence that the members of the Awami League had specifically targeted him as a BNP supporter for any specific agenda.  While he may well be a BNP supporter, the Board found that his involvement was at such low level and significance that it would not warrant any specific attention or persecution by the Awami League.

7.Although the Applicant was injured during Awami League attacks on BNP supporters, the Board considered that in many instances he was present as a spectator rather than a participant.  He suffered little or no harm.  As such, the Board found that the applicant was not at risk of serious harm and his fear was not well-founded. The Board also found that the applicant failed to seek available state protection and that internal relocation was viable.  Thus the Board dismissed the applicant’s appeal on 2 February 2018 on all the applicable grounds.

Decision of the court below

8.On 9 February 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for relief on judicial review, as stated in his supporting affirmation, were that the Director’s decision was unreasonable in that he failed to consider all the matters raised in his claim and/or to give adequate reason for the decision.

9.Following consideration of the documents only, on 1 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [18] of the Form CALL-1 ([2020] HKCFI 777, HCAL 202/2018) as follows:

“ 12. On 9 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date he merely stated that the decision of the Director was unreasonable in that he failed to consider all the matters raised in his claim and/or to give adequate reason for his decision, which are just some vague assertions without any particulars or specifics or elaboration as to how that was so.

13. As has been repeatedly emphasized by the Court of Appeal, 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.

14. As noted above the Applicant did not put forward any proper or valid grounds other than some vague assertions of unreasonableness or unfairness in the decisions of the Director or the Board without any particulars or elaborations, and in the absence of any error in law or procedure in their decisions being clearly or properly shown by him,I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.

15. As it has also been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country, or of mass conflicts or violent clashes between supporters of rival political parties as in the Applicant’s case, does not per se constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or ill-treatment upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati & anor [2018] HKCA 461. There is in my view simply no basis to accept that upon his return to Bangladesh, the Applicant would face any real and personal risk of being subjected to harm or ill-treatment whether in the hands of AL supporters or otherwise.

16. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision 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.

17. 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.

18.  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.”

Appeal to this Court

10.On 11 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which his stated grounds of appeal were:

(1)  the Judge wrongly concluded that the Board had not erred in its decision;

(2)  the Board decided that the applicant was not a credible witness;

(3)  lack of clarity and transparency in the Board hearing bundle, which was not read or interpreted to him prior to the Board hearing;

(4)  the applicant’s testimony was not interpreted correctly between his language and English during the Board proceedings.

11.Grounds (2) to (4) had not been raised at the court below.  Ground (1) is a general assertion.

12.On 11 June 2020, the applicant consented to have the appeal to be heard by 2 judges instead of 3.

13.On 1 September 2020, the Court directed the applicant to lodge his written submissions in the appeal on 30 September 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

14.The applicant failed to lodge any submissions as directed.  The hearing date is vacated and this appeal is processed on paper without a hearing.

Legal principles

15.In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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)  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 is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

16.In his grounds of appeal, the applicant did not identify any specific errors in the Judge’s decision or other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars are not effective grounds to support a judicial review or an appeal: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

17.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its findings that (1) there was no credible evidence that members of the Awami League had specifically targeted him as a BNP supporter and (2) he suffered little or no harm from the Awami League.  Thus Board found that the applicant was not at risk of serious harm and his fear does not appear to be well-founded. 

18.The Board also found that the applicant failed to seek available state protection and that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

19.As for the applicant’s complaint about the bundle, there is no absolute right to have the hearing bundle translated.  The applicant’s concern about the accuracy of the language interpretation at the hearing should have been raised with the Board at the hearing.  Further, this point was not even relied upon before the Judge.

20.Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is correct in refusing leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

21.For these reasons, we do not see any prospect of success in this appeal.  Accordingly, this appeal is dismissed.

The applicant acting in person