Re Halan Sheikh

CACV 19/2020

[2021] HKCA 896

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 19 OF 2020

(ON APPEAL FROM HCAL 1696/2018)

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

Date of Judgment:  25 June 2021

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.On 7 January 2020, Deputy High Court Judge KW Lung (“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 6 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 August 2017 rejecting the applicant’s non-refoulement claim.

2.On 14 January 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The applicant is a Bangladeshi national.  He entered Hong Kong on 26 January 2013.  After he was arrested by police on 29 January 2013 and transferred to the Immigration Department on 30 January 2013, the applicant lodged his non-refoulement claim on 3 March 2014.

4.The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by his neighbor Daktar in connection with a land dispute.  The factual background was succinctly summarized by the Judge at [4] of the Form CALL-1 ([2020] HKCFI 115).

5.By notice of decision dated 21 August 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 3 April 2018, during which the applicant gave testimony.  The Board found that while most of the applicant’s narrative as to the land dispute was credible, the applicant had inflated or exaggerated the nature of his case to include political persecution in connection with party affiliation. 

7.The Board considered the applicant had not experienced any severe pain or suffering.  The harm he had suffered was not occasioned by or linked to state actors.  The Board found that there was no real risk of harm in the event of refoulement.  The Board also found that internal relocation was viable and that the applicant had not shown that effective state protection was not available.

8.Thus the Board dismissed the applicant’s appeal on 6 August 2018 on all the applicable grounds.

Decision of the court below

9.On 21 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for relief on judicial review of the Board’s decision, were particularized by the Judge at [11] of the Form CALL-1.

10.Following a hearing on 14 June 2019 at which the applicant appeared before the Judge, on 7 January 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [22] of the Form CALL-1 ([2020] HKCFI 115, HCAL 1696/2018) as follows:

“ 11. The applicant relied upon a written submission attached to Form 86, on the general grounds of misdirect in the law, procedural impropriety or unfairness and irrationality which I shall particularize as follows:

1. the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

2. the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

3. he was confused at the appeal hearing;

4. the Adjudicator was unfair and had not given greater care to a self-represented claimant;

5. the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

6. the Adjudicator had applied the incorrect standard of proof;

7. the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and his knowledge was not updated;

8. the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

9. the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

10. the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Bangladesh” Autumn 2011, which is favourable to his case;

11. the Adjudicator failed to fulfil his obligation to obtain the requisite documents for his adjudication;

12. the Adjudicator was wrong in state protection in his country;

13. the BOR 2 risk was not screened; and

14. the applicant was not legally represented before the Board, which was in breach of procedural fairness.

DISCUSSION

The Board’s Decision

12. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

13. I explained the Board’s findings above to him and asked if he had any comments. He said that he had no comments.

14. On those facts the Board accepted, the Adjudicator has applied the relevant statutory provisions and the Convention to them and reached his conclusions accordingly.

15. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact are for the Adjudicator [42]. There is nothing to upset its findings.

16. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings as he had already been provided with legal representation at the screening stage.

17. Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

18. Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.

19. Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

20. Ground (13) fails because the applicant had not even raised this issue with the Board.

21. Ground (14) fails in view of the Court of Appeal decisions.

22. The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.”

Appeal to this Court

11.On 14 January 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  In his affirmation in support of the Notice of Appeal, he stated that he did not agree with the Judge’s decision but did not identify any grounds of appeal in the affirmation or the Notice of Appeal.

12.This Court directed on 14 April 2021 that the applicant must lodge his written submissions on appeal by 13 May 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

13.The applicant has failed to lodge any submissions as directed.  The hearing date is vacated and this appeal is disposed of on paper without a hearing.

Legal principles

14.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.  And

(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

15.The applicant did not provide any 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.

16.In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there would be no real risk of harm in the event of refoulement, due to the applicant not having experienced any severe pain or suffering, and the harm suffered by him was not caused by state actors.  The Board also found that internal relocation was viable and that the applicant had not shown that effective state protection was not available.  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. 

18.We would add that the complaint about lack of BOR 2 screening is without basis.  The Director’s decision of 21 August 2017 included determination on BOR 2 risk.

19.It is clear from the Board’s decision that it had referred to up-dated COI materials in 2017.  The Applicant’s reliance on out-dated COI in 2010 and 2011 was misplaced.

20.The Judge is plainly right in refusing to grant leave. 

21.For these reasons, this appeal is dismissed.

The applicant acting in person