Faruque Mohammad v. Torture Claims Appeal Board

CACV 596/2020

[2021] HKCA 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 596 OF 2020

(ON APPEAL FROM HCAL NO 1512 OF 2018)

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BETWEEN

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Before:  Hon Lam VP, Yuen JA and Lok J in Court

Date of Hearing:  7 June 2021

Date of Judgment:  15 June 2021

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J U D G M E N T

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

Introduction

1.On 13 July 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 26 July 2018.  In that decision, the Board rejected the applicant’s non-refoulement claim which had been refused previously by the Director of Immigration on 27 January 2017.

2.On 6 August 2020 the applicant filed a summons for an extension of time to appeal the Judge’s decision.  On 28 October 2020 the Judge granted an extension of time to lodge an appeal on his view that there was a reasonable explanation for delay, even though it would appear no consideration was given as to the merits of the intended appeal.  On 9 November 2020, the applicant filed a Notice of Appeal against the Judge’s decision of 13 July 2020 refusing leave to apply for judicial review.

Background

3.The applicant is a Bangladeshi national.  He last arrived in Hong Kong on 10 July 2006 and was permitted to remain as a visitor until 24 July 2006.  He did not depart and has overstayed. On 9 October 2006 he was arrested by police for overstaying and was referred to the Immigration Department the next day. He lodged a torture claim on 12 November 2006, which was rejected on 10 June 2011. He claimed that subsequently in 2015, his brother was attacked and robbed.  On 4 January 2016, he lodged a non-refoulement claim on the grounds set out in para. 5 below. 

4.The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by creditors who were connected to the Awami League, due to disputes arising from a loan. The factual background was summarized by the Judge at [2] – [4] of the Form CALL-1 ([2020] HKCFI 228, HCAL 1512/2018).

5.By notice of decision dated 27 January 2017, the Director assessed the applicant’s claim on all applicable grounds except torture risk[1] and determined it against him.  The grounds were BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

6.The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 24 April 2018, during which the applicant gave testimony via a Bengali interpreter.  The Board found that his claim was vague and unsubstantiated, and that he was unable to satisfactorily explain why his problems disappeared between 2005-2015 and then started up again, or why his family was unable to pay off a relatively small debt when they were able to buy land and build a substantial house on it.

7.As a result, the Board did not attach any credence at all to the applicant’s evidence, and rejected his claim.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 26 July 2018 on all the applicable grounds except torture risk (which, as mentioned above, had been previously rejected and was not the subject of the appeal to the Board).

Decision of the court below

8.On 31 July 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  In his Form 86 the applicant raised a number of grounds for judicial review which were summarized by the Judge at [10] of the Form CALL-1 ([2020] HKCFI 228, HCAL 1512/2018).

9.Following a hearing on 6 December 2019 at which the applicant appeared in person before the Judge, on 13 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [17] of the Form CALL-1 ([2020] HKCFI 228, HCAL 1512/2018) as follows:

“10.  On 31 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)  procedural unfairness in that the Board had unlawfully fettered its discretion in refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2)  procedural unfairness in that the adjudicator had acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3)  procedural unfairness in the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5)  that the Board had significantly relied on source of news not officially recognized or was simply hearsay or outdated which resulted in it making groundless speculations that it would be safe for the Applicant to return to his country of origin; and

(6)  that the hearing bundle for his appeal was provided to the Applicant just six days before his appeal with the majority of the documents in English without translation thereby given him insufficient time to prepare for his appeal or to find proper interpreter to assist him in his appeal before the Board.

11.  These are however all just 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 Board unlawfully fetter its discretion or acted in a procedurally unfair manner, or what sources of news relied on by the Board were not officially recognized or were hearsay or outdated. 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.

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.  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.

14.  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 SCF, 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 SCF 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.

15. Essentially the Applicant’s claim was rejected by the Board on its adverse finding as to his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 32 of its decision with the benefit of hearing his oral evidence and answers to questions raised of his claim during his appeal hearing, 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 to challenge the finding of the Board.

16.  Furthermore, 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.

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.”

Appeal to this Court

10.On 9 November 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  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 news sources that are not officially recognized, or are simply hearsay, and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

11.Pursuant to the Court’s directions of 14 April 2021, the applicant lodged his written submissions on appeal on 12 May 2021. Those submissions mostly consist of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case. In paragraph (5) of his submissions, he alleges that the Board acted in a procedurally unfair manner by failing to properly assess his credibility.

12.The applicant did not provide any details or particulars in support of his arguments or as to how the Board failed to properly assess his credibility or as to any specific errors by the Judge.  At the hearing before this court, he added that the same brother who had been attacked and robbed in 2015 was killed by terrorists on 15 May 2021. The applicant also added that he has been in Hong Kong for many years and would like to stay here as it was not secure for himself or his family in Bangladesh.

Legal principles

13.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

14.As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his arguments, 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.

15.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.

16.As for para (5) of his submissions, this seems to be a new point not raised before the Judge.  In any event, the Board rejected the applicant’s claim for non-refoulement based on its adverse finding as to the applicant’s credibility due to inconsistencies in and the inherent unlikelihood of his allegations, for which the applicant had no reasonable explanation. On the evidence, the Board was entitled to arrive at its conclusion on his lack of credibility.  As such, the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered 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. 

17.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 was plainly right to refuse leave.  The applicant’s allegation before this court that his brother was killed by terrorists on 15 May 2021 is not a matter that can be considered by this court on this appeal from the Judge’s decision. 

18.For these reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person