Re Khandoker Mithu

CACV 89/2022

[2022] HKCA 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 89 OF 2022

(ON APPEAL FROM HCAL 545 OF 2019)

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J U D G M E N T

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Hon Chu JA (giving judgment of the court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge To (“the Judge”) set out in the Form CALL-1 dated 16 February 2022 ([2022] HKCFI 452) dismissing his application for leave to apply for judicial review.

2.The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 1 February 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 December 2017 rejecting his non-refoulement claim.

3.The applicant is a national of Bangladesh. He last arrived in Hong Kong on 2 April 2013 under a false identity, and was permitted to remain as a visitor until 16 April 2013. He overstayed and was arrested by the police on 29 September 2013. On 18 April 2014, he raised a non-refoulement claim on the basis that he would be harmed or killed by members of the Awami League Party (“AL”) because he was a member of Jamaat-e-Islami (“JP”) which AL wanted to eradicate. The applicant’s claim was set out in detail in the Director’s decision at [6] and summarised by the Judge at [4] to [7] of the Form CALL-1.

4.In brief, the applicant was a member of JI, a rivalry party of AL, which was the ruling party. In 2013, a demonstration held by JI against AL and the police resulted in the death of three policemen. Although the applicant did not take part in the demonstration, he was targeted by AL members and was beaten up by some 10-20 AL members. His shop was vandalised and the people also threatened to kill him and his family. He left his home village and eventually fled to Hong Kong.

5.By his decision dated 29 December 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] grounds.

6.The applicant appealed the Director’s decision to the Board on 10 January 2018. The Board heard the appeal at an oral hearing held on 28 August 2018 during which the applicant gave evidence and answered questions from the Board. By its decision dated 1 February 2019, the Board dismissed the appeal. In summary, the Board accepted the applicant’s evidence as credible, but considered that, on the applicant’s case, it was not established that there were real and substantial risks that he would be pursued, harmed or killed by members of the AL if he returned to his country. The Board further found that state protection and internal relocation alternatives were reasonably available which would negate or reduce any risks that the applicant might face. The Board concluded that the applicant failed to make out a case for non-refoulement protection under any of the applicable grounds.

7.On 26 February 2019, the applicant filed a Form 86 to apply for leave to judicially review against the Board’s decision. He advanced the following grounds of review:

(1)  The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement.

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal.

(3)  The Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The Board significantly relied on news which were not officially recognised, hearsay or outdated, resulting in the Board making groundless speculations that it would be safe for him to return to Bangladesh.

8.The Judge heard the application at an oral hearing on 18 January 2022. By his decision given on 16 February 2022, the Judge refused to grant leave to the applicant to apply for judicial review.

9.In gist, the Judge considered ground (1) was in fact a challenge to finding of fact, for which there was no basis. On ground (2), the Board found the applicant was unable to provide supporting particulars. His assertion that he was not allowed to make submissions at an oral hearing was factually incorrect as the Board had held an oral hearing during which he gave evidence and answered questions of the Board. On ground (3), the Judge noted that the applicant again failed to give supporting particulars. Having examined the Board’s decision, the Judge found no error of law, procedural unfairness, unreasonableness or irrationality in the Board’s decision. On ground (4), the Judge held that a non-refoulement claimant does not have absolute right to free legal representation at all stages of the proceedings, and the applicant was not prejudiced by the non-availability of legal representation. As to ground (5), the Judge rejected the complaint on the Board’s use of country of origin information (“COI”) as groundless. The Judge held that the COI relied on by the Board was contemporaneous, credible and reliable, and it was a matter for the Board as to what weight to be given to the COI.

10.The applicant filed a notice of appeal on 23 February 2022 to appeal the Judge’s decision. The notice of appeal stated the following as grounds of appeal:

“the [appellant] 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.”

11.The written submission lodged on 18 May 2022 put forward the following arguments:

(1)  The decision has the effect of finally disposing of the applicant’s claim, making him liable to be removed and entailing significantly implications for his substantive right not to be subject to torture and his right to non-refoulement protection. Hence, high standards of fairness are required: Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 at [43] to [45]; and ST v Betty Kwan[5][2014] 4 HKLRD 277.

(2)  The appeal before the Board is a rehearing, but the Board erred in approaching the matter by trying to see if it could “find fault with the decision of the Immigration Officer”, whereas he should have considered matters such as the country conditions.

(3)  At common law, minimum standards of procedural fairness are required and the decision-maker is under a duty to act fairly, which is a “constitutional duty”: The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D; and Rowse v Secretary for the Civil Service & Ors [2008] 5 HKLRD 217 at [134].

12.At the hearing of the appeal, the applicant indicated he had nothing to add to what was already stated in his notice of appeal and written submission.

13.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. They are that:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board. They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal. Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board. 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 and/or the process by which the decision was made.

(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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.In light of the established legal principles set out above, we are of the view that the grounds and arguments put forward by the applicant have no merits. Our reasons are as follows:

(1)  The applicant fails to identify any error in the Judge’s decision. His complaints in the notice of appeal and written submission are directed solely at the Board’s decision.

(2)  The complaint in the notice of appeal about the Board’s use of and reliance on COI is vague and devoid of particulars. The applicant has not identified which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds. The complaint about the Board’s use of COI had been considered and rejected by the Judge for the reasons he gave at [23] and [24] of the Form CALL-1 (see also [9] above). The applicant has not pointed to any error in the Judge’s reasoning.

(3)  The complaint in the written submission that the Board did not approach the appeal as a rehearing is factually incorrect. It is evident from the Board’s decision that it did not, as the applicant suggested, approach the appeal simply by trying to see if the Director’s decision was justified. On the contrary, the Board had considered and analysed the applicant’s evidence in detail as well as the COI materials before reaching its own findings and conclusion on the claim.

(4)  The applicant has not explained how the cases and legal principles cited in the written submission relate or apply to his case or appeal.

(5)  The applicant’s assertion that his life will be threatened if he were refouled cannot stand in light of the Board’s rejection of his claim. Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker. The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness. However, the applicant fails to advance arguable grounds in this appeal to challenge the factual findings made by the Board.

15.We have separately reviewed the Judge’s decision and the Board’s decision and the reasons they gave for their decisions. We agree with the Judge that the intended judicial review has no reasonable prospect of success and that the application for leave to apply for judicial review should be refused. Accordingly, we dismiss the appeal.

The applicant acting in person