Re Ajit Biswas

CACV 227/2021

[2022] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 227 OF 2021

(ON APPEAL FROM HCAL 1550 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL-1 dated 28 April 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) ([2021] HKCFI 1176).

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 13 July 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 24 April 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.On 7 May 2021, the applicant indicated his consent for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

Background

4.The applicant is a national of Bangladesh.  He was arrested by the police for illegal remaining in Hong Kong on 14 March 2014.  On 16 March 2014, he was transferred to the Immigration Department and subsequently lodged a non-refoulement claim by way of a written representation dated 19 March 2014 on the basis that he would be harmed or killed by the local supporters of the rival political party Awami League.  Factual details of the applicants’ claim were summarised by the Deputy Judge at [2] ‑ [4] of the Leave Decision.

5.By a Notice of Decision dated 24 April 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[1], BOR2 risk[2], BOR3 risk^[3], and persecution risk^[4]. Taking into account all relevant circumstances, the Director assessed the risk of harm to the applicant from the Awami League supporters upon his return to the Bangladesh as low.  The Director considered that state protection would be available to the applicant and on the basis of Country of Origin Information (“COI”), internal relocation alternatives would be available to the applicant upon his return to Bangladesh.

6.On 2 May 2017, the applicant appealed against the Director’s Decision to the Board.  He attended an oral hearing before the Board on 25 July 2017 with the assistance of an interpreter but refused to give any evidence.  The Board dismissed his appeal on 13 July 2018.  The Board found that the applicant’s claims were vague, insubstantial and unsupported and did not find them to be credible.  Having considered and assessed the evidence, the Board considered that the applicant failed to substantiate his claim on all applicable grounds and that state protection and internal relocation alternatives would be available to the applicant upon his return to Bangladesh.

The Leave Decision

7.On 6 August 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review of the Director’s Decision and Board’s Decision.  He did not give any ground of review in his Form 86 or supporting affirmation.  As the applicant did not request for an oral hearing, his application was considered on paper by the Deputy Judge.

8.By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review for the following reasons:

“9. On 6 August 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 attached copies of the decision but without putting forward any 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 irrationality 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.

10. 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.

11. In the Applicant’s case, 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 parts 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.

12. 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.

13. 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.”

The Appeal

9.On 7 May 2021, the applicant filed a Notice of Appeal against the Leave Decision.  In his Notice of Appeal, although the applicant noted that an interpreter had been arranged to assist him during the hearing before the Board, he complained of the lack of language assistance as the hearing bundle was never read to him prior to the oral hearing.  He further complained that he had no means of finding out whether the interpreter had been interpreting his words correctly.  He then further requested that the Director should consider his case afresh and if necessary, his assessment on the basis of the BOR 2 risk should be done separately.

10.Contrary to the directions made by the Registrar of Civil Appeals on 24 June 2021, the applicant failed to lodge any written submissions in support of his appeal.

Discussion

11.The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.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’s decision, 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.

13.In light of the above, it is thus incumbent on the applicant to point out the errors in the Leave Decision with specific particulars and elaboration.

14.Nowhere in his Notice of Appeal did the applicant identify any error committed by the Deputy Judge with specific particulars and elaboration.  As such, no viable ground of appeal to challenge the Leave Decision has been raised by the applicant, and this appeal must fail on this basis alone.

15.Moreover, the matters raised in his Notice of Appeal are all new grounds not raised before the Deputy Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

16.In any event, his arguments regarding the alleged lack of language assistance have no merit at all.  It is trite that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: see Cucun Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20].  His complaints on the lack of language assistance are all bare allegations unsupported by evidence or particulars.  As he acknowledged, an interpreter was provided to him for the hearing before the Board.  There is also no suggestion or evidence that he made any complaint to the Board at the hearing about the interpreter.  We further note that the court documents filed in this appeal and in the Court below were in English.  It is thus clear that either the applicant was himself conversant with the English language or he had access to language assistance of his own if he found it necessary.  It is therefore clear that the applicant was not in any way prejudiced.  We consider that a high standard of fairness had been achieved in the overall process of the determination of his non-refoulement claim.

17.Furthermore, as repeatedly emphasised by this Court, assessment of evidence, Country of Origin materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: 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].

18.In any event, we have reviewed both the Board’s Decision and the Leave Decision and the reasons the Board and the Deputy Judge gave for their decisions.  We see no error of law, mistake of fact, or procedural impropriety in reaching those decisions.  The applicant had proper opportunities to plead and present his case before the Board and the Deputy Judge.  The Board had weighed the evidence and considered his claim in detail.  The Deputy Judge had also considered his application for leave to apply for judicial review in detail.  In the absence of any error committed by the Deputy Judge, there is no basis to disturb the Leave Decision.

19.For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.