Palash Gazi v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 378/2020

[2021] HKCA 405

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 378 OF 2020

(ON APPEAL FROM HCAL NO 2855 of 2018)

________________________

BETWEEN

________________________

Before:  Hon Lam VP, Yau and S T Poon JJ in Court

Date of hearing:  22 March 2021

Date of Judgment:  29 March 2021

________________________

J U D G M E N T

________________________

Hon S T Poon J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 5 August 2020 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 7 December 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 30 October 2017 rejecting his non-refoulement claim.

2.The applicant is a Bangladeshi national.  He arrived in Hong Kong on 29 March 2014 and was permitted to remain as a visitor until 12 April 2014.  He did not depart and has overstayed.  On 9 August 2014 he was arrested by the police for overstaying and was referred to the Immigration Department on 11 August 2014. The applicant lodged a non-refoulement claim on 16 August 2014.

3.The applicant’s claim was based on the fear(s) that, if he returned to Bangladesh, he would be harmed or even killed by members of the Awami League because he failed to pay extortion money they had demanded and because he supports the Bangladesh Nationalist Party (“BNP”).  The factual background was succinctly summarized by the Judge at [5] of the Form CALL-1[1]. 

4.By a notice of decision dated 30 October 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4] and BOR 2 risk[5].

5.By its decision dated 7 December 2018 (“the Board’s Decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, due to significant inconsistencies and anomalies in the applicant’s evidence, the Board concluded at that the central aspects of the applicant’s circumstances were not as he claimed.  Based on the applicant’s own factual evidence, the Board found that he was not an active BNP supporter, and that he was subjected to extortion in the past because he was a shop owner but not because of political reasons.  Moreover, he was no longer a shop owner and there was no evidence that he intended to establish any business if returned to Bangladesh.  In addition, due to the unreliability of the applicant’s factual account, the Board did not accept that any attack on the applicant took place.

Application for leave to start judicial review

6.On 12 December 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision which contained no ground for seeking the relief.  In his affirmation in support, the applicant quoted statements of law from English cases but did not specify any grounds for relief.

The Judge’s Decision

7.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [15] of the Form CALL-1:

“12.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny in light of the grounds advanced by the applicant.

13.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.… …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.’

14.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to Court of Appeal

8.By a Notice of Appeal filed on 17 August 2020, the applicant appealed against the refusal of leave for judicial review.  His stated grounds of appeal are that he will face hardship if he were to return to his home country; that the Board relied on sources that are not officially recognized, hearsay or outdated; and that the lack of credible sources of information resulted in the Board making groundless speculations. 

Written Submissions

9.Pursuant to the Court’s directions, the applicant lodged his written submissions on 8 December 2020.  Those submissions consist of general statements of law quoted from case law without identifying how they relate to or apply in this case.  The applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors by the Board or the Judge.

Legal Principles

10.The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

12.When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  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.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[6] and we will not repeat them here. 

13.Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court. 

14.We heard the appeal on 22 March 2021.  At the hearing, the applicant had nothing further to say. 

Discussion

15.As mentioned earlier, the applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  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.

16.As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings as to the applicant’s credibility.  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. 

18.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 plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

19.For these reasons, this appeal is dismissed.

The applicant, unrepresented, appearing in person.