RE MAZHI MD MIJAN

CACV 421/2019

[2020] HKCA 119

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 421 OF 2019

(ON APPEAL FROM HCAL NO. 1742 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)   The appeal

1.1.     This is an appeal against the decision of Deputy High Court Judge K. W. Lung who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

2)   Background

2.1.     The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 10 January 2016. He lodged a non‑refoulement claim on 15 January 2016 on the basis that if he was to return to Bangladesh, he would be harmed or killed by members of the Awami League.  He is a supporter of the rival political party.

2.2.     The details of the applicant’s claim have been summarized by the Judge at [3] of the CALL‑1 Form.

3)   The Director’s Decision     

3.     The Director decided against the applicant’s claim on 20 January 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)   The Board’s Decision

4.1.     The applicant appealed against the Director’s Decision to the Board on 26 January 2017.  After a hearing held on 13 June 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 7 August 2018.

4.2.     The Board found that the applicant’s case was incredible.  It held that if the applicant genuinely feared for his life and left Bangladesh, it was inconceivable that he would voluntarily return twice to Bangladesh.  The applicant also failed to claim protection in two countries he had visited.  It found that the applicant had lived in Bangladesh for six years without difficulty after the alleged event in 2010 when he was threatened with a gun by the supporters of the Awami League.

5)   Decision of the Judge

5.1.     The applicant complained before the Judge that the Director and the Board had made errors of law.  He complained that there was procedural impropriety, irrationality and there was a failure to consider the extended concept of state acquiescence.

5.2.     The Judge held that when the applicant appeared before him, the applicant confirmed in Court that he had no complaint against the Immigration officer or the Board.  He considered he had had a fair hearing before the Board.  The Judge held that the applicant’s complaints now are his opinions without any evidence to support.

6)   Grounds of appeal

6.1.     In summary the applicant stated in his notice of appeal and affirmation in support the following grounds :

1)     The Judge was wrong in law in holding that there was no state acquiescence or involvement.

2)     The Judge failed to provide detailed reasons.

6.2.     The applicant’s skeleton arguments put forward very broad and general notions of non‑refoulement principles without elaborating on the specifics of how they relate to the circumstances of his case.

7)   Our view

7.1.     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 to and rejected by the Judge.  In the determination of 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.

7.2.     The Judge’s reasons for decision were indeed short but as he had explained that ‘It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.’

7.3.     The Board had held :

‘ There appears to be no dispute the appellant is a national of Bangladesh, but beyond that I find none of his other claims can be given any credence whatsoever.’

7.4.     In our view on that basis it was sufficient for the Judge not to grant leave for judicial review.  The issue of state acquiescence was not engaged before the Judge.

7.5.     The grounds of appeal have no merits.

7.6.     Accordingly the appeal is dismissed.