Re Imran Mohammad

CACV 308/2021

[2022] HKCA 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 308 OF 2021

(ON APPEAL FROM HCAL 1359 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 8 June 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”) [2021] HKCFI 1637.

2.The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 9 July 2018 (“the Board’s Decision”), which dismissed the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 November 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.On 11 June 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 Bangladesh national.  He entered Hong Kong illegally on 4 June 2012 and was arrested by the police on 13 January 2013.  On 14 January 2013, he was referred to the Immigration Department and subsequently lodged a torture claim on 21 January 2013, which was rejected by the Director on 29 August 2013.  Subsequently, he lodged a non-refoulement claim by way of written representations dated 3 March 2017 and 16 March 2017 on the basis that he was in fear of being killed by family members of Al Amin and Parvez upon his return to Bangladesh.  Factual details of the applicants’ claim were summarised by the Deputy Judge at [2] ‑ [5] of the Leave Decision.

5.By a Notice of Decision dated 27 November 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk^[1], namely 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 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 and reasonable.

6.The applicant appealed against the Director’s Decision to the Board and attended an oral hearing before the Board 20 June 2018 and gave evidence.  The Board dismissed his appeal on 9 July 2018.  The Board found that the applicant’s evidence relating to the facts on which his claim was based was questionable and unreliable.  Having considered and assessed the evidence, the Board considered that the applicant failed to demonstrate that there was a genuine risk of harm against him by his alleged enemies in Bangladesh, and that state protection and internal relocation alternatives would be available to him upon his return to Bangladesh.  Accordingly, the applicant failed to substantiate his claim and his appeal was dismissed by the Board.

The Leave Decision

7.On 11 July 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review of the Board’s Decision.  He did not give any ground of review in his Form 86.  In his supporting affirmation, he only stated that the Board’s Decision was unreasonable and that the Board failed to consider all the matters raised in his claim and / or failed to give adequate reason for his decision.

8.The applicant attended the oral hearing before the Deputy Judge on 27 May 2021 and a Bengali interpreter was present to provide language assistance.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review for the following reasons:

“10. On 11 July 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 simply stated that the decision is unreasonable in that the Board failed to consider all the matters raised in his claim and/or failed to give adequate reason for the decision without providing any details or particulars or elaboration how it was so, while at the hearing of his application he just stated that his problem still exists in his home country that he cannot go back. 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.

11. 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.

12. In the Applicant’s case, the fact is that it has been established by the Director in the decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts 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.

13. 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.

14. 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 11 June 2021, the applicant filed a Notice of Appeal against the Leave Decision.  In his Notice of Appeal, the applicant stated:

“the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.Pursuant to the directions made by the Registrar of Civil Appeals on 29 July 2021, the applicant lodged his written submissions on 6 August 2021. In his written submissions, the applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which was about the late filing of notice of appeal to the Board.  It is noted that these are all general propositions and the applicant has failed to show specifically how they are relevant to his case.

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, 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 sufficient particulars and specifics.

14.Nowhere in his Notice of Appeal or written submissions did the applicant identify any error committed by the Deputy Judge.  The matters raised by the applicant are all general, bare and vague allegations unsupported by specific particulars or evidence.  Clearly, they do not constitute viable grounds of appeal and this appeal must fail on this basis alone.

15.Moreover, the matters raised in his Notice of Appeal and his written submissions are all new grounds not raised before the Deputy Judge.  It is well established that this Court will not generally 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]; and Re Gurpreet Singh [2021] HKCA 1740 at [15].  Accordingly, we refuse to entertain his new grounds.

16.In any event, his arguments are devoid of merit.  As repeatedly emphasised by this Court, assessment of evidence, COI 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].

17.We have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  The applicant had opportunities to plead and present her case before the Board and the Deputy Judge.  The Board had weighed the evidence and considered her 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.

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