RE BEPARI MASUD

CACV 20/2019

[2019] HKCA 531

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 20 OF 2019

(ON APPEAL FROM HCAL NO. 205 OF 2018)

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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

1.1   This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan given on 11 January 2019 in which he refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2   The applicant did not comply with the directions of the Registrar of Civil Appeals of 31 January 2019 and did not lodge any skeleton submission.  The original hearing fixed for 7 May 2019 was hence vacated, and the applicant’s appeal is now being considered on paper.

2)  Factual background

2.1   The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 7 July 2014.  He completed a non‑refoulement claim form on 16 February 2016.

2.2   The basis of the applicant’s claim is that he is a member of the Bangladesh Nationalist Party (‘BNP’) and he would be harmed or killed by supporters of the rival political party Awami League (‘AL’).

2.3   The background facts have been summarized in the decision of the Judge at [1]-[8].

3)  The Director’s Decision

3.1   The Director decided against the applicant’s torture claim on 1 June 2016.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

3.2   The Director further decided against the applicant’s right to life claim on 13 July 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered the applicant’s rights under Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

4.1   The applicant appealed against the Director’s Decision to the Board on 13 June 2016.  After a hearing held on 3 November 2017, the Board dismissed the applicant’s appeal on 1 February 2018 (‘the Board’s Decision’).

4.2   The Board found that there were inconsistencies in the applicant’s account of threats and assaults from members of the AL, and it was unconvinced that after all these years the AL people would still pursue the applicant.  The applicant was just an ordinary BNP member.

5)  Decision of the Judge

5.   The Judge held that many of the applicant’s complaints against the Board were broad and vague assertions without particulars or specifics or elaborations as to how they applied to his case, or how the Board erred in its decision.   The Judge agreed with the Director and the Board that the applicant’s perceived risk of harm is a localized one.  Internal relocation was possible.

6)  Grounds of appeal

6.   The applicant in the notice of appeal filed on 15 January 2019 repeated his complaint about the risk of harm in returning to his home country, and that his father was also at risk of harm.  He repeated that AL is the ruling party and since he was affiliated to BNP he would be harmed if he returned.

7)  Our view

7.1   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 the decision of the Board: 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; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

7.2   The applicant has provided no viable grounds of appeal against the decision of the Judge. 

7.3   Accordingly, the appeal is dismissed.