Re Rahman Mojibur

CACV 497/2020

[2021] HKCA 492

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 497 OF 2020

(ON APPEAL FROM HCAL 1281 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 Coleman J (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 2 June 2020 refusing to grant leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 453.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 22 June 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 July 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.The applicant filed his Notice of Appeal on 21 September 2020.  He also filed his (handwritten) skeleton submissions on 9 February 2021 as directed by the Registrar of Civil Appeals.  By a letter dated 21 September 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 entered Hong Kong on 30 March 2015 illegally and was arrested on 2 April 2015.  On 4 April 2015, he lodged a non-refoulement claim.

5.The details of the applicant’s claim and his personal background were set out in paragraph 7 of the Director’s Decision, and paragraphs 9-10 of the Board’s Decision.

6.The applicant claimed that he would be harmed or killed by Sadek Khan (“SK”) and his associated Awami League (“AL”) members because of the applicant’s support for Bangladesh Nationalist Party (“BNP”).  He also feared that his creditors would hunt him down for his default in repaying the loans.  The applicant claimed to hold the position of publicity secretary of young wing of BNP and his family had been supporting BNP.  Around 3 to 4 months before the general election in 2008, SK and his associates harassed, threatened and extorted the applicant.  The applicant subsequently left his home village.  Upon his return in 2014, there was a fight between BNP and AL members which the applicant’s brother was assaulted and injured.  In around October 2014, the applicant had a heated argument with the BNP members but he was not physically hurt.  Eventually, out of fear, the applicant 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 19 April 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 had 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 before reaching the conclusion that the applicant was not a credible witness.  It found the applicant’s evidence to be inconsistent, vague and implausible.  On this basis alone, the Board dismissed his appeal (paragraphs 23-53 of the Board’s Decision).    

C.      The Deputy Judge’s Decision

10.The applicant filed a Form 86 on 4 July 2018 seeking leave to apply for judicial review against the Board’s Decision.  His grounds of review therein were succinctly summarized at [11] of the Deputy Judge’s Decision as follows:   

“11. On 4 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) misdirection in the law in the adjudicator misdirecting himself in the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial ground to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weighton relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and to make finding of fact as to whether a consistent pattern of gross and mass violation of human rights exists in Bangladesh;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.”

11.After hearing the applicant in court and considering the documents, the Deputy Judge refused to grant him leave with reasons set out at [12]-[19] of the Deputy Judge’s Decision:

“12. These are however all very broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. 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 application.

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

14. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

16. Furthermore, the Applicant’s claim was rejected by the adjudicator essentially on his adverse finding on the Applicant’s credibility for the thorough and detailed analysis and reasoning set out in paragraphs 23 – 43 of its decision and with the benefit of hearing his evidence and answers to questions raised of his claim during the oral hearing of his appeal before the Board, 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 with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

17. The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board,there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526 .

18. 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.

19. 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 complained in his Notice of Appeal that the Deputy Judge simply stated that he did not see any errors in the Board’s Decision without addressing the alleged errors put forward in the applicant’s grounds of review. In the skeleton submissions, the applicant did not elaborate any grounds but only repeated his personal background and his claim.

13.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 written submissions.

E.      Discussion

14.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.

15.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.

16.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.

17.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).

18.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.

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

20.As mentioned earlier, the Deputy Judge had considered the applicant’s grounds of review and stated thoroughly his reasons for dismissal in the Deputy Judge’s Decision.  The applicant failed to identify any errors in the Deputy Judge’s reasons.  Merely alleging that the Deputy Judge failed to address the errors of the Board without pinpointing which errors did he refer to is plainly not a viable ground.  On this basis alone, the appeal should be dismissed.

21.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

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

The applicant acting in person