Re Munshi Dalowar

CACV 383/2021
[2022] HKCA 525

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 383 OF 2021

(ON APPEAL FROM HCAL NO. 2217 OF 2018)

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J U D G M E N T

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

I. The appeal

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 7 September 2018. 

2.Pursuant to the directions of the Registrar of Civil Appeals on 11 August 2021, the applicant was required to provide written submissions to the Court by 25 August 2021.  The applicant has failed to do so.  Pursuant to paragraph 8 of the same directions, the applicant is now deemed to have abandoned his right to rely on written submissions, and his notice of appeal will be dealt with on paper.

II.  Factual background

3.The applicant is a national of Bangladesh.  He arrived in Hong Kong illegally on 16 December 2013 and was arrested by the Police on the same day.  He submitted his non‑refoulement claim form on 25 October 2017 on the basis that he would be harmed or killed by supporters of a rival political party known as the Awami League.

4.The details of the applicant’s claim have been summarized by the Deputy Judge at [1]-[3] of the CALL‑1 Form.

III.  The Director’s Decision

5.The Director of Immigration (‘the Director’) decided against the applicant’s claim on 20 November 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

IV.  The Board’s Decision

6.The applicant appealed against the Director’s Decision to the Board on 1 December 2017 and attended an oral hearing on 31 May 2018 before the Board.  The Board thereafter dismissed the applicant’s appeal against the Director’s decision on 7 September 2018.

7.The Board found there were serious inconsistencies and contradictions in the applicant’s oral evidence.  In particular, the Board was not prepared to accept that the applicant was ever attacked or threatened by the Awami League.  The Board further found that the applicant was not a witness of truth.  In any event, the Board was not satisfied that the applicant would face any real harm in Bangladesh if he is to return there in the reasonably foreseeable future. Therefore, the Board found that the applicant’s claim for non‑refoulement was unsubstantiated and failed on all applicable ground.

V.  Decisions of the Judge

8.The applicant filed a Form 86 with a supporting affirmation.  No grounds of relief were set out in his Form 86.  In his supporting affirmation, he simply annexed the decision of the Board and the hearing bundle at the Board’s hearing.

9.The Judge considered the merits of the application and found that the applicant did not put forward grounds for challenge.  He found that there was no error of law or procedural unfairness that could be found and therefore, the application was dismissed.   

VI.  Grounds of appeal

10.The applicant’s grounds of appeal can be summarised as follows :

1)  The Judge was wrong in his decision in coming to the conclusion that the Board did not err in its decision.

2)  There was a lack of clarity and transparency in the trial bundle.  The Judge dismissed his claim because ‘it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly, he was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood it’s cont.’  This is an overstatement as the bundle was only interpreted to him whenever the Board found it necessary to be referred to certain paragraphs or document.  He only understood those contents which were interpreted to him and he had no means to find out what the rest was.  The bundle was never read to him prior to the oral hearing and he was asked to pick it up with limited assistance (as Duty Lawyer has refused to provide further assistance).  By the fact that he speaks little English and can barely read English, it was unfair and detrimental to expect him to prepare for the hearing.

3)  As he has to rely heavily on the interpreter, he did not have the means and could not find out if the interpretation was correct or not.  It has proven that his words have always been wrongly interpreted and a lot of words were simply lost in translations.  As such, the Board had wrongly exercised case management power in deciding against him on the issue of credibility.  He did not want to clarify the matter further before the Board because he did not have anyone to seek legal advice from and also because he has reached a point of frustration in having to explain himself for things that he had never said.

4)  The present proceedings should be settled similarly as in another case, and the Director should consider the case afresh in a different way and if necessary the BOR 2 should be done separately, requiring re‑screening of the non‑refoulement claim after considering the additional grounds not previously ‘represented or recognised’.

5)  Failure of the Court below to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up‑to‑date COI in the consideration of his claim.

VII.   Our view

11.The grounds of appeal as stated above were not relied before the Court below.  In any event, they are nothing but broad and vague allegations without specifics or elaboration.

12.We will repeat the approach of this Court in dealing with cases of this nature :

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 the 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 their decisions.

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. In the determination for 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 a refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review particularly when the grounds now relied upon were not advanced before the Judge.

13.In our view, there is simply no merit in the applicant’s appeal.  The Judge had provided his reasons of refusal in his decision.  There is no error in the Judge’s decision.  Accordingly, the appeal is dismissed.

Applicant, unrepresented, acting in person