RE HABIBUR RAHMAN MOHAMMED

CACV 354 /2023, [2024] HKCA 348

On appeal from [2023] HKCFI 2630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 354 OF 2023

(ON APPEAL FROM HCAL NO. 1016 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 2 November 2023 ([2023] HKCFI 2630)  refusing to grant him leave to judicial review the decision of the Torture Claims Appeal Board (“the Board”)  dismissing his appeal against the decision of Director of Immigration (“the Director”)  rejecting his non-refoulement claim.

2.  On 9 November 2023, he consented to the disposal of his appeal on paper by the Court of Appeal. 

3.  The applicant has lodged a written submission to support his appeal.  However, by a written request dated 19 February 2024, he asked for a dismissal of his appeal. 

The applicant’s claim

4.  The applicant is a Bangladeshi.  He entered Hong Kong illegally and surrendered himself to the Immigration Department on 21 July 2015.  He then raised a non-refoulement claim based on his fear of being harmed or killed by the supporters of Awami League (“AL”)  because of his support for a rivalry political group, Jamaat-Islami (“JI”).  The details of his claim were set out in [7] of the Director’s decision and [23] to [49] of the Board’s decision. 

5.  In gist, the applicant claimed that his family is supportive of JL and he was an ordinary member of JL.  In May 2013, JI organized a protest against AL, which was the ruling party, and alcohol smuggling activities of some AL members. The applicant attended the rally.  Afterwards, a senior JI member, Aziz, was abducted, badly beaten by AL supporters, and died from the injuries.  On his father’s advice, the applicant began associating with Al supporters and ceased his involvement in anti-alcohol smuggling protests.  Some 20 months later, the AL people suddenly asked him to enroll with them and attended their meetings and rallies.  They threatened to kill him like Aziz if he refused to do so both verbally and by pointing a gun at him.  Fearing for his safety, the applicant left to stay with his uncle, and later went to Mainland China, from where he sneaked into Hong Kong.  

The Director’s and the Board’s decisions

6.  By a Notice of Decision dated 1 August 2017, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], persecution risk[2], BOR 3 risk[3] and BOR 2 risk[4]. 

7.  The applicant’s appeal against the Director’s decision.  The Board heard the appeal on 3 September 2018, during which the applicant gave evidence and answered questions from the Board.  By a decision dated 29 March 2019, the Board dismissed the appeal. 

8.  In sum, despite having doubts over some of his evidence, the Board was prepared to accept the bulk of the applicant’s case.  This include: the applicant and his family were JI supporters and known to the AL members as having been involved in protests and was JI supporters, the applicant attended the May 2013 protest, Aziz was abducted and beaten by AL people and/or activists engaged in criminal activities and died from the injuries, the AL people with whom the applicant was associating became suspicious of him, and threatened to kill him if he did not join AL and attended its activities, and after the applicant had left home they harassed his brother and family and also assaulted his father after finding out he was trying to obtain documents about Aziz’s death.

9.  The Board was satisfied that the applicant was targeted by AL activists and might continue to face a real risk of harm from them because of his association with protest action against alcohol smuggling.  The Board was further satisfied that he would not be able to access adequate state protection in his home area.

10.  The Board, however, considered that the applicant’s risk of being targeted by the AL people was a localized risk, and that internal relocation option was reasonably available to the applicant and consequently he does not face a real risk of being subjected to torture, harm or mistreatment, persecution or a violation of his right to life.  The Board therefore concluded that the applicant failed to show that he was entitled to non-refoulement protection under any of the applicable grounds.

The Judge’s decision

11.  The applicant filed a Form 86 and affidavit on 15 April 2019 to seek leave to apply for judicial review against the decision of the Board.  His grounds in support of the application were summarized by the Judge at [20] of the Form CALL-1 as follows:

“a. The hearing bundle was delivered to him shortly before the Board’s hearing and there was no interpretation service for the documents in English. He was therefore confused. However, he had answered all the questions from the Board.

b. The Board had relied upon the source of news which is not officially recognized or it is simply hearsay and cases which are fairly outdated, resulting in the Board making groundless speculations that it is safe for him to return to his country.

c. The Board did not notify him of its decisions by phone, as requested.

d. BOR 2 risk was assessed without any screening process.

e. The adjudicator had not been to his country to understand the real situation there. Its decisions are therefore wrong and unfair.

f.  The Board was procedurally unfair and failed to meet greater care and duty to a self-represented claimant.”

12.  The Judge heard the leave application at a hearing held on 15 February 2023.  By a Form CALL-1 dated 2 November 2023, the Judge dismissed the application.  His reasons were encapsulated at [24] to [26] as follows: 

“24. The Board has carefully considered the applicant’s situations and came to its conclusion that internal relocation is a viable and reasonable option open to him.

25. The applicant’s grounds in paragraph 20 cannot assist him. Ground (a)  fails as he was not entitled to interpretation service at any stage of his application. He had already had free legal representation at the screening stage. His allegation that he was confused at the Board’s hearing is not relevant because he did not raise this issue before the Board for more time to prepare for his appeal and he was able to answer all the questions put to him by the Board. Ground (b)  is only his bare assertion without any evidence in support of it. Ground (c)  is irrelevant as the Board has no duty under the law to notify him by phone and he had received the Board’s notification of the Board’s Decision. Ground (d)  fails because there is no statutory requirement for screening for BOR 2 risk, particularly after the screening for the other risks. Ground (e)  fails because it is unnecessary for the adjudicator to go to his country to understand his situation. The adjudicator had relied on the COI, which she was entitled to do so. Ground (f)  is only his bare assertions or opinion without any evidence in support.

26.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The appeal

13.  By a notice of appeal dated 9 November 2023, the applicant appealed the Judge’s decision to this court.  The grounds of appeal in the notice of appeal are:

“The High Court judgment is partial. The court did not consider my points, and the Court declair [sic] that Adjudicator had no wrong. It is a hundred percent false statement. I wish the Court of Appeal will grant my leave.”

14.  In his written submission, the applicant gave an outline of his claim.  He complained that the Immigration officer did not believe him and thought he would be safe in other parts of his country, the Board made many errors, and the High Court did not look at his arguments or consider his points and there was no oral hearing.  He stated that did not agree with the judgment and wanted to appeal.

Our reasons for decision

15.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In summary,

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal. 

(2)  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 issue at hand, the court should not usurp the role of the Board. 

(3)  Assessment of evidence and Country of Origin Information 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.

16.  For the reasons set out below, we are of the view that the matters and arguments stated in the notice of appeal and the written submission have no merits: 

(1)  The Judge had set out the grounds relied on by the applicant and gave brief reasons for not accepting them: see [8] and [9] above.  It is incorrect to say that the Judge disregarded the applicant’s arguments. 

(2)  The Director’s reasons for rejecting the applicant’s claim is no longer material as the applicant had appealed it to the Board. 

(3)  The Board accepted the bulk of the facts underlying the applicant’s claim.  However, the Board considered that the risk faced by the applicant is a localised one, and internal relocation options are reasonably available to the applicant, hence he did not face a real risk of being harmed, tortured or persecuted or violation of his right to life. Although the applicant asserted that the Board made many mistakes, he had not identified what they were.  Nor had he shown any error of law, procedural irregularity or irrationality in the Board’s decision and reasoning.  There is thus no basis for the Court to interfere with the Board’s findings on the viability of internal relocation and the risk that the applicant may face upon returning to his home country.   

(4)  It is incorrect to say that there was no oral hearing as the Judge had listed the application for leave to apply for judicial review for an oral hearing, and the applicant had attended the hearing and made representations to the Judge.

17.  We have separately considered the decision that the applicant seeks to challenge.  We do not discern any legal errors, irrationality or procedural irregularities.  We agree with the Judge that the intended judicial review has no prospect of success, and the Judge is correct in refusing to give leave to apply for judicial review.  There is no merit in the appeal or the intended application for judicial review.

18.  In the circumstances and having regard to the applicant no longer wishes to pursue his appeal and has requested for it to be dismissed, we order that the appeal be dismissed.