RE ISLAM MOHAMMAD ARIFUL

CACV 340/2024, [2025] HKCA 27

On appeal from [2024] HKCFI 1922

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 340 OF 2024

(ON APPEAL FROM HCAL 1739 OF 2019)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 8 August 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 30 May 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 25 August 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 26 April 2015, and was arrested by the police on the same day.  Thereafter, he lodged a non-refoulement claim by way of a written representation dated 29 April 2015.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League, one of whom is known as Zia Oadud Billal, due to political conflict.  The details of the applicant’s claim have been summarised by the Judge at [3] to [10] of the Judge’s decision (“the CALL-1 Form”)[1].  

4.  By a Notice of Decision dated 25 August 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 13 November 2018.  The Board found, inter alia, that there were material inconsistencies in his evidence, such as whether during a particular incident in 2009-2010, which the applicant claimed to have occurred, he was “punched and kicked” by Awami League members, or whether only a “verbal argument” took place (see [44]-[37] of the Board’s Decision). The Board found on the evidence that the future risk of harm posed to the applicant by Awami League members was low.  In any event, suitable options of internal relocation were available to the applicant in order to minimise or reduce such risk, if any.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

6.  The applicant filed a Form 86 on 24 June 2019 seeking to judicially review the Board’s Decision.  In the Form 86 and in his supporting affirmation filed on the same day, the applicant set out his grounds for review, which have been summarised by the Judge at [21] of the CALL-1 Form as follows:

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

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal. The hearing bundle was sent to him shortly before the hearing without interpretation service. He was confused. But he was able to answer all questions put to him by the adjudicator. Also, the Board did not notify him by phone despite he had made the request. The Board relied on the source of news which is not officially recognized or is simply outdated, resulting its speculation that if is safe for him to return to his country.

(3)  The Board’s Decision is unreasonable or irrational in public law or is the result of procedural error or unfairness. The Board made its decisions without going to his country to see the situation there.

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

7.  After summarising the facts and background of the case and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [22] to [30] of the CALL-1 Form:  

“22. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

24. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13.(1)  …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 the decision of the Board.’

25. The Board had a rather comprehensive review of the applicant’s evidence at the hearing. For the reasons above, the Board rejected his evidence in support of his claim.

26. I shall consider the applicant’s grounds for the assessment of the Board’s Decision.

27. Grounds (1), (3)  and (4)  are his bare assertions or his opinions without any evidence in support. The Board was entitled to rely on the country of origin information without going to his country physically for the assessment of his evidence. As to Ground (2), the applicant did not raise the issues of not having enough time or his inability of understanding the documents to the Board. Nor did ask for an adjournment for more time to prepare for his appeal. He admitted that he was able to answer the questions put to him by the adjudicator. His comment on the reliance by the Board on the news not recognized is only his bare assertion without any evidence in support.

28. I find that the applicant has failed to raise any valid reasons to challenge the Board’s Decision.

29. In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

30.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

8.  In the Notice of Appeal filed on 16 August 2024, the applicant merely stated that he “[wants] to appeal”.  

9.  In his written submissions lodged on 15 October 2024, the applicant repeated that his life would be in danger should he be refouled, as his family had been forced to vacate their home by reason of the ‘powerful enemies’.

10.  We heard the appeal on 5 December 2024.  The applicant appeared at the hearing. He submitted that there were “many problems” awaiting him back in his home country, that his brother has had to leave the country and that his family members could not remain in his family home there.  Otherwise, the applicant had nothing else to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

11.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

12.  In the application in the court below, the applicant raised with the Judge several complaints of procedural unfairness allegedly committed by the Board, such as the Board’s apparent reliance on outdated “source of news” in reaching its Decision (see [6] above and [21] of the CALL-1 Form).  The applicant’s complaints, which formed his grounds for judicial review, were, for the reasons given at [27] of the CALL-1 Form, found to be unmeritorious and therefore rejected by the Judge.

13.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

14.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.