FARUK OMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

CACV 557/2019

[2020] HKCA 349

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 557 OF 2019

(ON APPEAL FROM HCAL NO 1119 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 22 November 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 21 April 2013 and was arrested by the police on 24 April 2013.  The applicant lodged his first non-refoulement claim on 9 August 2013 which was subsequently withdrawn on 11 February 2014. He lodged his second non-refoulement claim on 30 January 2017.   

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the supporters of the Awami League (“AL”) and/or by the police, as his family were supporters of AL’s rival political party Jamaat-e-Islami (“Jel”) and he was a member of Jel’s student wing Chhatra Shibir (“CS”).  The brief facts of this case were summarized by the Judge in [1]-[6] of the CALL-1 form ([2019] HKCFI 2423).

4.  By a Notice of Decision dated 25 November 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds.  The decision covered the BOR 2 risk[1], BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the Director’s decision.  An oral hearing was held on 8 June 2018.  The Board found multiple material difficulties with the applicant’s evidence and considered that he was not a credible witness.  The Board rejected the applicant’s claim of being a member or supporter of Jel or of any arrest warrant being issued against him by the police.  The Board concluded that the applicant does not face a real risk of the proscribed harm from the supporters of AL and/or the Bangladesh authorities, if he is refouled to Bangladesh.  By a decision dated 11 June 2018, the Board determined the appeal against the applicant. 

The Judge’s decision

6.  The applicant filed a Form 86 and an affirmation in support on 19 June 2018.

7.  At [11] of the CALL-1 form, the Judge categorized the matters stated in the Form 86 and the applicant’s supporting affirmation into the following grounds:-

(a)  Procedural impropriety in their failure to take into account the concept of extended state acquiescence;

(b)  Procedural impropriety in their failure to conduct sufficient independent inquiries into relevant country of origin (“COI”) including failing to conduct a critical analysis of the relevant COI, failing to provide any justification as to why the COI material in support of the conclusion of the Board or the Director should be preferred, and cherry-picking COI material in arriving at their decisions;

(c)  Error/misdirection in law for their failure to consider the psychological harm which befell on the applicant as a result of the facts stipulated in his claim;

(d)  Unreasonableness in their assessment of his claim under BOR 3 risk, BOR 2 risk and persecution risk premised on false logic regarding the intention of his assailants when he actually suffered injuries for which he was hospitalized, and for finding that his claim was a private dispute when it was in fact caused by his political view and for being a member of Jel; and

(e)  Irrationality in their failure to give reasons for assessment of lack of BOR 3 risk and/or insufficient basis to support conclusion of lack of BOR 3 risk.

8.  The application for leave to apply for judicial review was listed for hearing on 17 July 2019.  The applicant attended the hearing and made oral representations.  A Bengali interpreter was present at the hearing to assist the applicant and the Judge.

9.  The Judge refused to grant leave for the applicant to apply for judicial review and gave the following reasons at [12] – [17] of the CALL-1 form:

“12.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or what was the relevancy of the concept of the extended state of acquiescence to his claim, or in what way did the adjudicator fail to take into account relevant COI or for cherry-picking or improperly rely on the COI, or how did they fail to give reasons for their assessment of his BOR 3 risk. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of which I do not find any basis or merits in any of them, or that they are reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, 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 Diector of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility as to his account of events occurred in Bangladesh that led to his claimed fear of harm if refouled for the thorough and detailed analysis and reasoning as set out in paragraphs 33-42 of its decision with the benefit of hearing him in evidence and in answers to questions raised of his claim by the adjudicator during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in the process before the Board and in its decision being clearly identified and elaborated by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

15.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm from the AL supporters 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 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.

16.  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.

17.  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

10.  On 4 December 2019, the applicant filed a notice of appeal against the Judge’s decision.  He stated in the notice that (i) the Board failed to consider his fear that he would face real risk from the ruling party and have a proper observation of Country of Origin (“COI”) materials; and (ii) the Board failed to consider his fear under BOR 3 risk. 

11.  In compliance with the directions of the court, the applicant lodged his written submissions on 10 March 2020 which may be summarized as follows:-

(a)  The Director and the Board failed to comply with their duty to make sufficient inquiries into COI conditions of his claim and adopted a passive approach in contravention of the high standards of fairness, namely the discharging of the burden of proof. He relied on the cases of Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and TK v Jenkins & anor [2013] 1 HKC 526.

(b)  The Director and the Board failed to take into account and/or give proper weight to relevant considerations and materials which they should have.  In particular, they failed to give due regard to (i) that he would face real risk upon refoulement.  His claim is a political matter against the current ruling party AL and his life would be at danger if he returns home; and (ii) that he must have been placed in severe mental distress upon refoulement because he would face difficulty from his enemies from AL.

(c)  There are no clear directions why he would not be a subject of persecution upon refoulement.  The Director and the Board failed to assess his fear as his enemies will continue to look for him wherever he hides in Bangladesh.

12.  We heard the appeal on 19 May 2020. At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and Written Submission.

Discussion

13.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

14.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  Third, 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).

17.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

18.  With these principles in mind and having considered the materials before us, we are of the view that the appeal should be dismissed.

19.  The applicant failed to identify any viable grounds to challenge the Judge’s decision.  All the grounds in the Notice of Appeal were against the decision maker, i.e., the Board and the Director, which had been addressed by the Judge.  Thus, in absence of any identified viable grounds advanced by the applicant against the Judge’s decision, we dismiss this appeal.

20.  In any event, we have reviewed both the Board’s Decision and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision.

21.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.