Re Hague Gaziul

CACV 532/2021

[2022] HKCA 701

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 532 OF 2021

(ON APPEAL FROM HCAL NO. 1425 OF 2018)

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Before:  Hon Chu JA and ST Poon J in Court

Date of Judgment:  30 May 2022

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JUDGMENT

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Hon Chu JA giving the Judgment of the Court:

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 19 November 2021 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 25 June 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 February 2017 rejecting his non-refoulement claim.

2.The applicant’s appeal was scheduled to be heard on 28 March 2022. The applicant was directed to lodge his written skeleton argument by 28 February 2022 and further warned that if he failed to do so, he shall be deemed to have waived his right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper. This was communicated to the applicant by the Court’s letter dated 26 January 2022 and the Notice of Hearing dated 14 February 2022.

3.The applicant failed to lodge his skeleton argument by the stipulated time, the hearing date was accordingly vacated. We have proceeded to process this appeal on paper based on the available materials.

4.The applicant is a Bangladeshi national. He entered Hong Kong illegally and was arrested by the police on 7 July 2014. He later raised a non-refoulement claim based on his fear of being arrested by the Bangladesh police and harmed or killed by supporters of the Awami League (“AL”), who had made a false claim against him because he was as supporter of the rival party Jamaat-e-Islami Party (“Jamaat”). The applicant’s case was set out in detail in the Director’s decision at [8], and summarised by the Board at [3] of its decision and by the Judge at [1] to [4] of the Form CALL-1 dated 19 November 2021, [2021] HKCFI 3458.

5.In gist, the applicant and his family were supporters of Jamaat. During one altercation between supporters of AL and those of Jamaat at which the applicant was present, there were fighting and vehicles were set on fire. The applicant later learnt that a false claim of arson was made against him and the police had issued a warrant for his arrest. Fearing for his personal safety, he fled the country and eventually sneaked into Hong Kong.

6.By a Notice of Decision dated 28 February 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].

7.The applicant appealed the Director’s decision to the Board. An oral hearing was held on 24 May 2018, during which the applicant had answered questions put by the Board. By its decision dated 25 June 2018, the Board dismissed the appeal. In short, the Board considered the applicant’s evidence did not show physical or mental pain, suffering or ill-treatment that satisfied the requirements under any of the applicable grounds, or that there was any harm or threat of harm from the state authority. The Board found no real or substantial risk of harm to the applicant if he were to return to his country. The Board also took the view that the applicant’s evidence was in any event unreliable and incredible. The Board accordingly concluded that the applicant failed to establish his entitlement under any of the applicable grounds.

8.The applicant filed his Form 86 together with a supporting affirmation on 19 July 2018 to seek leave to apply for judicial review against the decision of the Board. The Form 86 did not set out any ground for seeking relief. The supporting affirmation only stated that the Board disregarded his dangerous situation, but did not provide any particulars or elaborations.

9.At the applicant’s request, the Judge heard the application at an oral hearing. By his decision of 19 November 2021, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success. He gave his reasons given at [9] to [13] of the Form CALL-1 as follows:

“9. … 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, while the way in which the Board raised issue with the credibility or reliability of his claim by questioning the reason why he had chosen to come to Hong Kong for protection and the way he sneaked into Hong Kong illegally but without putting such questions to the Applicant during the appeal hearing certainly appear to me improper and/or procedurally unfair, or that if they had indeed been put to the Applicant at the hearing, the decision did not explain at all or adequately why they were not accepted by the Board (see §§34 – 37 of the decision), but the Board did in my judgment correctly and independently find on the basis of the Applicant’s own case that there was no evidence or reason for those AL supporters to specifically target him for political reason given his lack of official position in the Jamaat party, and that from the relevant COI before the Board that it did also correctly find that state protection and reasonable internal relocation would be available to the Applicant upon his return to Bangladesh to negate any such risk, and that if indeed he is being pursued by the police for any criminal offence brought against him prior to his departure, there is a functional legal system in place in Bangladesh to ensure that he would be entitled to due process and with proper legal representation to defend such charges. In the circumstances, notwithstanding the flaws in the Board’s assessment of the Applicant’s credibility, I am not satisfied that there is any reasonably arguable basis to challenge the Board’s conclusion on the basis of its other correct findings as noted above.

12. 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 part of India, 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.”

10.In the Notice of Appeal filed on 29 November 2021, the applicant stated the following as his grounds of appeal:

“I would like to reject and review the decision made by the Torture Claims Appeal Board on my non-refoulement case. They disregard my dangerous situation.”

11.The grounds of appeal are unarguable. The focus of an appeal in the Court of Appeal is the correctness of the decision in the court below. The Court of Appeal will only interfere with a refusal to grant leave to apply for judicial review if the appellant can demonstrate that the judge had made errors of law or failed to take into account relevant matters, or was otherwise plainly wrong: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(2)].

12.In the present case, the applicant has not identified any error in the Judge’s decision and reasons. We have considered the papers and the Judge’s decision. We agree with the Judge that while the Board’s adverse finding on the applicant’s credibility has no proper basis and cannot be sustained, there is no public law ground to interfere with Board’s analysis and conclusion that the facts of the applicant’s case do not meet the legal requirements for any of the applicable grounds. We do not discern any basis to interfere with the Judge’s refusal to grant leave to apply for judicial review.

13.For the above reasons, the appeal has no merits. Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.