Re Salim Mollah

CACV 237/2020

[2021] HKCA 85

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 237 OF 2020

(ON APPEAL FROM HCAL NO 2012 of 2018)

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Before:  Hon Chu JA and ST Poon J in Court

Date of hearing:  14 January 2021

Date of Judgment:  21 January 2021

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 June 2020[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 14 September 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 31 December 2015 and 24 November 2016 rejecting his non-refoulement claim.

2.The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.The applicant is a national of Bangladesh.  He entered Hong Kong on 11 August 2006 and was permitted to remain as a visitor until 25 August 2006.  He overstayed and was arrested by the police on 17 November 2009.  In November 2009 he made a torture claim application[2], but it was rejected by the Director on 15 March 2013.  He later made a non-refoulement protection claim.     

4.The applicant’s claim is based on fear of being harmed or killed by his paternal uncle and his sons arising out a dispute over some ancestral properties as well as the members of the Awami League (“AL”) with whom his uncle is associated.  He also said upon his return he would be sued by a bank for a loan that he had failed to repay.  His claim was set out in detail in the Director’s first decision at [7] and the Board’s decision at [3] to [28], and summarised by the Judge in [1] to [9] of the Form CALL-1. 

5.In gist, the applicant claims that his uncle is an influential man by reason of his political association with AL while he and his father are affiliated to the rivalry political party, the Bangladesh Nationalist Party (“BNP”).  His case is that his grandfather died leaving certain properties that were under the control of his uncle and his sons.  In 2006 after the applicant and his father unsuccessfully asked his uncle for a share in the ancestral properties, the applicant’s cousins brought a group of AL members to his home, assaulted his brother, damaged some of the furniture and threatened to kill his mother and brother if another demand for the ancestral properties were to be made.  The applicant’s parents made a report to the police but were told to resolve the dispute as it was a family matter.  A few days later, the applicant and his father were threatened by his cousins and a group of AL members armed with choppers.  On two or three occasions when the applicant was going to school, he was harassed and threatened by his cousins and their friends in AL.  His father sent the applicant to stay with his relatives in Dhaka.  In August 2006, the applicant left Bangladesh for fear that his uncle would harm him through the Rapid Action Battalion which was under the control of AL.

6.By his decisions dated 31 December 2015 and 24 November 2016, the Director rejected the applicant’s claim.  The first decision covers the persecution risk[3] and BOR 2 risk[4] grounds while the further decision covers the BOR 3 risk[5] grounds. 

7.The applicant appealed the Director’s first decision to the Board.  The Board heard the appeal at an oral hearing held on 11 November 2016 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 14 September 2018, the Board dismissed the appeal having regard to all the applicable grounds.  The Board pointed out that there were inconsistencies between the applicant’s non-refoulement claim form and his oral evidence given at the appeal hearing.  The Board did not accept that the dispute with the uncle, which somehow turned into a political dispute, could not be resolved in the local judicial system.  The Board further found that even on the applicant’s case, the risk of harm was low, and state protection was reasonably available and internal relocation was viable.  The Board concluded that the applicant had failed to make out a case for protection under any of the applicable grounds.    

8.On 24 September 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  The grounds put forward by the applicant were summarized by the Judge in [15] of the Form CALL-1 as follows:

“(1)   procedural impropriety in that the decisions of both the Director and the Board are illegal as both committed errors of law in dismissing his non-refoulement claim and appeal respectively without requiring the Applicant to obtain relevant COI and instead made the assessment on their own COI;

(2)   irrationality in failing to consider the concept of extended state acquiescence regarding state involvement in the Applicant’s case;

(3)  failure to consider the Applicant’s fear and the supporting documents submitted by him that his claim is genuine and would face real risk upon refoulement; and

(4)  error/misdirection in law in their failure to consider the Applicant’s claim under BOR 3 risk which he would face risk from his enemies upon return, and instead only focused on that he only received very low torture and that his dispute with his uncle was a private matter without regard for the real risk that he would face from his enemies upon return to his home country.”

9.The Judge heard the application at an oral hearing held on 3 January 2020.  For reasons set out in [16] to [20] of the Form CALL-1, the Judge refused to give leave and dismissed the application:

“16.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to his claim, or how did they fail to consider his BOR 3 risk when it is clear from both of their decisions that his BOR 3 risk had been properly and adequately assessed. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and 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.

18.  The fact is 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.

19.  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.

20.  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.”

10.By a Notice of Appeal filed on 3 July 2020, the applicant appealed the Judge’s order to this court.  He gave the following as his grounds of appeal:

(1)  Failure to consider the Country of Origin Condition information (“COI”) in that he would face genuine risk if he were to return to his country.

(2)  Failure to consider his claim under the BOR 2 risk, BOR 3 risk, torture risk and persecution risk grounds and that he would be at risk if he were to return to his country.

11.The applicant had filed a written submission in which he advanced the following arguments:

(1)  The Director and the Board failed to comply with their duties to make sufficient inquiries into COI and adopted a passive approach in contravention of the high standard of fairness set out in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

(2)  The Director and the Board failed to take into account and/or give proper weight to the relevant considerations and materials, hence their decisions were illegal.  Specifically, they failed to give due regard to the fact that:

(a)  he would face real risk upon refoulement because of his enemies and his life would be in danger; and

(b)  he must have been placed in severe mental illness as a result of which he would face difficulty caused by his enemy upon refoulement.

(3)  His claim was not personal or private in nature. He had to flee for his life.  His enemies would hunt him down no matter where he hides.  There was no clear finding on why he would not be subjected to persecution upon refoulement.  The Director and the Board failed to assess his fear as his enemies continued to look for him.

12.We heard the appeal on 14 January 2021.  At the hearing, the applicant had nothing to add to his written submission.

13.The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

16.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.

17.In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  Firstly, Evaluation of risk of harm are matters for the primary decision makers and not for the court.  The applicant’s arguments that he would be in danger if he were to return to his country is irrelevant both as a ground for judicial review and as a ground of appeal against the Judge’s decision.  In any event, we have reviewed the Board’s decision and the reasons it gave for its decision.  Like the Judge, we see no errors of law, or mistake of fact, or procedural impropriety in reaching the decision.  There is no basis to interfere with the Board’s decision.   

18.Secondly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  While the applicant has made criticisms of the Director and the Board and asserted that he would be at risk if refouled, he has not pointed to any specific error in the Judge’s reasons for decision.  In the circumstances, there is no proper basis to disturb the Judge’s decision. 

19.For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.