RE BEPARI MOHAMMAD MASUD

CACV 477/2022, [2024] HKCA 117

On Appeal From [2022] HKCFI 3541

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 477 OF 2022

(ON APPEAL FROM HCAL NO. 61 OF 2019)

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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)  :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan dated 25 November 2022 who refused to grant leave to the applicants to apply for judicial review against the decisions of the Director of Immigration (‘the Director’)  and the Torture Claims Appeal Board (‘the Board’).

2.  On 8 December 2022, the applicant in this appeal have consented that this appeal may be disposed of on paper without an oral hearing.  We consider the arrangement proper and give our judgment below. 

2)   Background

3.  The applicant is a national of Bangladesh.  In August 2015, the applicant left Bangladesh and arrive in the Mainland.  He then entered Hong Kong illegally on 24 September 2015 and was arrested by the Police for suspicion of being an illegal immigrant.   He then on 27 September 2015 raised a non-refoulement claim on the basis that he would be harmed or killed by seven to eight unknown people who claimed to be from the Awami League because he refused to pay them extortion money.  He supported the rival Bangladesh Nationalist Party (‘BNP’).

4.  The details of the applicant’s claim have been summarized by the Judge at [2]-[6] of the CALL-1 Form.

3)  The Director’s Decision

5.  The Director of Immigration decided against the applicant’s claims on 21 December 2017.  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc)  and Article 2 (right to life)  of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

6.  The applicants appealed against the Director’s decision to the Board.  After a hearing held on 19 November 2018, the Board dismissed the applicants’ appeal against the Director’s decision on 17 December 2018.

7.  The Board had asked the applicant during the hearing if he would answer questions and clarify matters raised in his documents, but the applicant refused to do so.  The Board held that even though the applicant produced medical evidence of injury, nothing was stated in the documents about the cause of the injury other than ‘sharp cutting injury’.  The injuries, even if severe, could have been sustained in a number of ways inconsistent with the alleged attack.  The Board held that the timing of the alleged attack as stated in the applicant’s documents contradicted with the hospital discharge time as stated in the applicant’s medical discharge certificate. The Board held that there were numerous matters that needed the applicant’s clarification but the applicant failed to answer questions from the Board.  These questions include why the Awami League would target the applicant if his status was only a supporter of BNP?  In light of the applicant stating that there were many people attacking him, why were his purported injuries relatively minor?  The reason why the applicant would re-open his store about five months after the purported attack if he was in such fear of the Awami League?  The reason why the applicant did not report to the Police of the purported attacks?  What was the reason why the applicant did not raise protection claim when he was in the Mainland?  The Board held that the applicant’s claims lacked detail and are unconvincing without further explanation.  Without proper explanation coming from the applicant they are mere assertions.  The Board concluded the applicant not being a witness of truth.  The applicant failed on all applicable grounds that the Board considered.

5)  Decision of the Judge

8.  The Judge held that the applicant’s complaints before him were broad and vague assertions without any particulars as to how it applied to his case or how the Director or the Board has erred.  The Judge held that there was no reasonably arguable basis to challenge the findings of the Board and the Director.

6)  Grounds of appeal

9.  In short, the applicants’ notice of appeal and written submission contain the following grounds of appeal :

(1)  The Director had made many errors;

(2)  His life is threatened;

(3)  His enemy can kill him any time; and

(4)  He has no way of return.

7)  Our view

10.  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.

11.  In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

12.  All of the applicant’s intended grounds of appeal are fact sensitive and within the province of the Board.

13.  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.