Re Shamsul Mohammad

CACV 466/2020

[2021] HKCA 484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 466 OF 2020

(ON APPEAL FROM HCAL 723 OF 2018)

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Before:  Hon Au JA and Coleman J in Court

Date of Hearing: 29 March 2021

Date of Judgment: 9 April 2021

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J U D G M E N T

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Hon Au JA (giving the Judgment of the Court):

1.This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 7 September 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 2188.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 12 April 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 26 October 2016 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The applicant filed his Notice of Appeal on 14 September 2020.  He also filed his skeleton submissions on 1 March 2021 as directed by the Registrar of Civil Appeals.  By a letter of 14 September 2020 (wrongly dated as 14 October 2020), the applicant gave consent to the appeal being heard by a two-member court.

A.      Background

4.The applicant is a national of Bangladesh.  He arrived Hong Kong illegally on 9 August 2014 and was arrested on the same date.  He lodged a non-refoulement claim on 16 August 2014.

5.The details of the applicant’s claim and his personal background were set out in paragraphs 7 - 12 of the Director’s Decision, and paragraphs 22 - 32 of the Board’s Decision.

6.The applicant claimed that he would be harmed or killed by his parental uncle and other members of Awami League (“AL”).  The applicant claimed to be an active member of Chhatra Shibir (“CS”).  His parental uncle Abdul was the chairman of AL in their hometown.  After the applicant’s repeated refusals to quit the CS and join AL, Abdul occupied the applicant’s land with a view to exert pressure on him.  In the years of 2011, 2012, 2013 and 2014, he had been assaulted and attacked four times by members of AL either due to political disagreements or the land dispute.  Out of fear, he fled to Hong Kong for protection.

B.      The Director’s Decision and the Board’s Decision

7.The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 10 January 2018, during which the applicant answered questions from the Board with the assistance of an interpreter.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

9.The Board reminded itself of the applicable legal principles.  It found that the applicant’s evidence was consistent and provided a genuine account of the events.  Yet, the Board was of the view that the conflict between the applicant and his parental uncle or the members of AL remained a private one without state involvement (paragraphs 37 - 43 of the Board’s Decision).  In any event, state protection and internal relocation were both available to the applicant (paragraphs 44 - 51 of the Board’s Decision).  Thus, the Board dismissed his appeal.

C.      The Deputy Judge’s Decision

10.The applicant filed a Form 86 on 25 April 2018.  In that, he only listed the Director’s Decision as the decision against which his relief was sought.  The applicant did not request an oral hearing.  In his supporting affirmation, he did not advance any grounds of review but simply stated that the Director failed to take into account all the matters he raised before it.

11.After considering the documents, the Deputy Judge refused to grant him leave to apply for judicial review for the reasons set out at [11] ‑ [15] of the Deputy Judge’s Decision:

“11. On 25 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the decision is unreasonable in that the Board failed to consider all the matters raised in his claim and/or to give adequate reason for its decision but without providing any particulars or elaborations as to how it did so or to put forward any further or proper ground for his intended challenge. Nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12. 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.

13. In the Applicant’s case, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

14. 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.

15. 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.”

D.      Grounds for appeal

12.The applicant’s grounds of appeal in his Notice of Appeal are essentially these: (a) the Deputy Judge was wrong in concluding that the Board did not err in its decision; (b) the Board wrongly adjudicated that he was not a credible witness; (c) there was lack of clarity and transparency in the hearing bundle which was not translated to him; (d) the interpreter had wrongly translated his words.

13.In the applicant’s skeleton submissions, after repeating his personal background and procedural background of his non-refoulement claim, he listed out several grounds against the Board’s Decision, which could be summarized into the categories of procedural unfairness and irrationality[5].  Insofar as the challenge against the Deputy Judge’s Decision is concerned, the applicant argued that he did not give sufficient reasons and that he did not examine the Board’s Decision under rigorous examination and anxious scrutiny[6].

14.At the hearing, the applicant confirmed that he had nothing further to add to what have already been set out in the Notice of Appeal and the skeleton submissions.

E.      Discussion

15.The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

16.First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

17.Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.Bearing these principles in mind, we are of the view that this appeal has no merit.

21.First, while the applicant listed the Director’s Decision as the decision under challenge, the Deputy Judge had rightly dealt with his application in relation to the Board’s Decision as the Director’s Decision is generally not a decision that is susceptible to judicial review once an appeal to the Board is pursued by the applicant: Re Moshsin Ali [2018] HKCA 549.  Further, the grounds against the Deputy Judge’s Decision in the applicant’s skeleton submissions are bare and general assertions.  They did not identify any errors with sufficient particularities in the Deputy Judge’s Decision.  These are therefore not viable grounds.

22.Second, the remaining grounds and arguments advanced by the applicant in the Notice of Appeal and the skeleton submissions are new and were not argued before the Deputy Judge.  The applicant did not complain about the hearing bundle or the quality of the interpreter before the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

23.Third and in any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

24.For all these reasons, we dismiss the appeal.

The applicant acting in person