Khan Liton v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 411/2021

[2021] HKCA 1918

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 411 OF 2021

(ON APPEAL FROM HCAL NO 2789 OF 2018)

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Before: Hon Kwan VP and Yuen JA in Court

Date of Written Submissions: 15 November 2021

Date of Hearing: 13 December 2021

Date of Judgment: 24 December 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 3 August 2021, Deputy High Court Judge K W 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 29 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 9 December 2016.

2.On 27 August 2021, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.The Applicant is a national of Bangladesh.  He entered Hong Kong on 30 January 2016 illegally and was arrested by police on the same day.  He lodged a non-refoulement claim with the Immigration Department by way of written representation dated 3 February 2016 claiming that if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he was an active member of the Bangladesh Nationalist Party (“BNP”). 

4.By a Notice of Decision dated 9 December 2016, the Director assessed the applicant’s claim on all applicable grounds on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against him.

5.The applicant lodged an appeal to the Board against the Director’s decision.  The appeal was heard on 6 September 2018 and by its decision dated 29 November 2018, the Board rejected the appeal/petition and confirmed the Director’s decision.  The Board found at [52] to [58] of its decision that the applicant’s evidence was inconsistent and contradictory and he was not a witness of truth.  It was found that the risk of harm to the applicant by the members of AW upon his return to Bangladesh was low [59].   The Board accepted that there may be inadequate state protection as it is generally acknowledged that the police force in Bangladesh is inefficient and that corruption is widespread [60].  Nevertheless, given the low level of involvement by the applicant in the BNP and the lack of serious harm in the past, the applicant should be able to safely relocate to other parts of Bangladesh [62] to [66].  For the aforesaid reasons, the Board dismissed the appeal on all applicable grounds.

Decision of the court below

6.On 6 December 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Director’s and the Board’s decisions (although he named the Board incorrectly).  In his supporting affirmation of the same date, he stated that he wants to judicially review the Board’s decision as it is unfair and unreasonable.  The Judge treated the applicant as asking for leave to apply for judicial review of the Board’s decision only.

7.The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By the decision dated 3 August 2021, the Judge refused to grant leave to apply for judicial review, and the reasons for the refusal were set out at [12] – [16] of the Form CALL-1 as follows:

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

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. His ground in support of this application does not assist his application.

15. 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.

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

Appeal to this Court

8.On 27 August 2021, the applicant filed a Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, the applicant advanced the following grounds:

“I am disagree with the decision maker authorities. There is no such investigation in my case. The authorities only believe on col information which available on the web news and web search only there is no reality in real life its towards to my life still danger in my home country.”

9.In compliance with the Court’s directions of 19 October 2021, the applicant lodged his written submissions on 15 November 2021.  In his written submissions, he said:

(1)     He disagreed with the decisions of the Director and the Board as they were not determined fairly.

(2)     The Board was in breach of procedural fairness in that (a) it had unlawfully fettered its discretion by refusing his appeal; (b) it acted in an unfair manner in dealing with his appeal, (c) the decision was unreasonable and irrational in the public law sense or as a result of procedural errors or unfairness and (d) it failed to meet the standards of great care and duty owed to a self-represented claimant.

(3)     He answered all the questions honestly but the Board ruled against his credibility.  The hearing was unfair and lacked appropriate arrangement in relation to the hearing bundle.

(4)     The Board had significantly relied on sources of news which are not officially recognised or are simply hearsay or outdated.  The lack of credible source of information has resulted in groundless speculation that it would be safe for him to return to his home country.

10.At the hearing he had nothing to add.

Legal principles

11.In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.The applicant did not in his Notice of Appeal or written submissions 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.   

13.In the present case, the Board rejected the applicant’s claim for non-refoulement protection on the issue of credibility and in any event, internal relocation would be a reasonable and viable option to avoid his local AL members.  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.  We found no such grounds in this case.

14.Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave. 

Order

15.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person