MD YOUSUF MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 172/2020

[2020] HKCA 925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 172 OF 2020

(ON APPEAL FROM HCAL NO 1593 of 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 9 June 2020 dismissing his application for 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 13 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 5 January 2017 rejecting his non-refoulement claim.

2.  The applicant is a national of Bangladesh.  He arrived in Hong Kong at the Lo Wu Control Point on 29 April 2014 but was refused permission to land.  On the same day, he lodged his non-refoulement claim. 

3.  The applicant’s claim is based on his fear of being tortured or killed by people of the Bangladesh Nationalist Party (“BNP”). He also claims that he was accused and charged with murder by the Bangladeshi police and feared that he would be arrested if he returns to Bangladesh.  His case was set out in detail in [6] of the Director’s decision dated 7 July 2014 and summarised by the Judge in [3] to [4] of the Form CALL-1[1].

4.  The applicant’s case, in brief, is that he was approached by people of the BNP in September 2011 to join the BNP but he refused.  They then threatened to frame him up with a murder case.  A few days later, more BNP people came to his confectionery shop and chased after him holding bamboo sticks.  The applicant escaped and the BNP people vandalized his shop.  The applicant is a member of Jamaat-e-Islami (“JI”) since about February 2011 because of its Islamic background.  In about January 2010 to late 2011, the applicant ran a confectionery shop.  In March 2012, there was a fight between his two neighbours and one of them died.  He and his uncle were present at the scene and they were wrongly accused of having committed murder by the police and arrest warrants were issued against them.  He believed he was no longer safe in Bangladesh.

5.  By his decision dated 7 July 2014, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], and BOR 3 risk[4] grounds. 

6.  On 14 August 2014, the applicant filed with the Board an appeal against the Director’s decision, which was out of time by about 3 ½ weeks. 

7.  By its decision dated 10 September 2014, the Board dismissed the appeal for it was filed out of time, though it has also considered the merits of the case and rejected it under the three applicable grounds. 

8.  On 27 May 2016, the applicant filed a Form 86 in HCAL 105/2016 to apply for leave to judicially review the Board’s decision.  W Chan J initially granted leave to the applicant to apply for judicial review on 27 July 2017.  Upon the application of the Director (as the interested party), W Chan J set aside the leave on 17 May 2018.  

9.  Meanwhile on 14 December 2016, the Director on his own initiative reviewed the applicant’s situation and invited him to submit additional facts which may be relevant to his non-refoulement claim on the BOR 2 risk ground[5]. The applicant did not submit any additional facts.  By a further decision dated 5 January 2017, the Director rejected the applicant’s claim under the BOR 2 risk ground.  On 16 February 2017, the applicant appealed against the Director’s Further Decision but was again out of time by about 4 weeks.

10.  By its decision dated 13 July 2018, the Board dismissed the appeal for being filed out of time.  The Board found that there was no justification to grant any extension of time because the applicant failed to provide any additional information on top of what has already been provided concerning his non-refoulement claim submitted in about April 2014 (“Board’s further decision”). 

Application for leave to start judicial review

11.  On 9 August 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s further decision. The grounds put forward by the applicant were summarized by the Judge in [14] of the Form CALL-1 as follows:

(1)  The Board was in breach of procedural fairness;

(2)  The Board failed to have greater care and duty owed to a self-represented claimant;

(3)  The applicant was not given an oral hearing; and

(4)  The applicant was not invited to submit written submissions.

The Judge’s Decision

12.  After hearing the applicant, the Judge refused leave for the reasons set out in [15] – [21] of the Form CALL-1 :

“15. The applicant appeared before me. He confirmed that he only applied for leave to apply for judicial review of the Board’s Further Decision.

16. Grounds (1) and (2) are his opinions without any evidence in support of them. They fail.

17. Under section 12, Schedule 1A of the Ordinance, the Board has power to assess the appeal without a hearing if it is satisfied that appeal could be justly determined without a hearing. The Board did not accept his explanation for being late in his appeal and had also considered the merits of his case, including the facts of his case in its previous decision rejecting his appeal against the Director’s Decision dated 7 July 2014. Ground (3) fails.

18. Ground (4) does not sustain because high standard of fairness requires the applicant to take the initiative to decide whether he should make written submissions to the Board. The applicant cannot sit back and requires the Board to guess whether he would make written submissions for his application.

19. The applicant fails to show that he has any reasonable chance of success in his proposed judicial review.”

Appeal to Court of Appeal

13.  By a Notice of Appeal filed on 12 June 2020, the applicant appealed the Judge’s order to this court.  He stated his grounds as follows:

(1)  He will face hardship if he is to return to his country;

(2)  The Board has relied on incredible source of news and information about his home country which is not officially recognised or is simply hearsay;

(3)  The Board has relied on cases which are outdated considering the dramatic changes; and

(4)  The Board has made groundless speculations as a result.

Skeleton Submissions

14.  The applicant filed a written submission on 25 August 2020 submitting that high standards of fairness are required for making a decision by the decision maker.  He cited various authorities including ST v Betty Kwan[6] and Secretary for Security v Sakthevel Prabakar[7], and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed.  However, he did not provide any elaborations for his argument which did not support his grounds of appeal.

Legal Principles

15.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

16.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

17.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  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.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[8] and we will not repeat them here.

18.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[9]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[10] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.  

19.  We heard the appeal on 9 November 2020. At the hearing, the applicant said he has already put down all he wanted to say on the papers to the court.  

Discussion

20.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

21.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

22.  In any event, we have reviewed the Board’s decisions 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. 

23.  For the above reasons, we are of the view that the appeal has no merit.  Accordingly, we dismiss the appeal.