RE SATTER ABDUL

CACV 402/2020

[2021] HKCA 246

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 402 OF 2020

(ON APPEAL FROM HCAL NO. 2111 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 11 August 2020 in HCAL 2111/2018 refusing leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) dated 29 June 2017 and the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 July 2018.

2.  Pursuant to the directions of the Registrar of Civil Appeals given on 1 December 2020, the applicant shall lodge with the court 2 sets of skeleton arguments not less than 28 days before the hearing of the appeal i.e. on or before 25 January 2021.  Despite the letter sent by the court on 3 December 2020 reminding the applicant of the aforesaid directions, he failed to do so.  The Registrar had further directed that in the event of the applicant’s failure to lodge his skeleton arguments, he shall be deemed to have waived his right to have an oral hearing and this Court shall proceed to determine the appeal on paper only and so we did.

Background

3.  The applicant is a national of Bangladesh.  He last entered Hong Kong illegally on 5 August 2015 and surrendered to the Immigration Department on 6 August 2015.  On 28 April 2016, he lodged a non-refoulement claim by way of written representation on the basis that if refouled, he would be harmed or killed by his creditors for failing to repay his loans and/or charged by the police for being involved in a political rally in 2012 when he returns to Bangladesh.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1841. 

4.  By the Notice of Decision dated 29 June 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

5.  The applicant appealed to the Board.  After an oral hearing on 26 April 2018, the Board dismissed the appeal on 27 July 2018.  For the reasons and findings set out in [48] to [56] of the decision, the Board found significant inconsistencies and discrepancies in the applicant’s evidence regarding his alleged loans as well as subsequent abduction and ill-treatments by his creditors or possible pursuit by the police.  The Board had serious concerns over the credibility of his claim.  The Board concluded that the applicant was not a credible witness and did not accept that there would be any real or foreseeable risk of harm to him upon his return to Bangladesh.  Given its findings on the applicant’s credibility, it was not necessary for the Board to consider the issue of state protection or reasonableness of relocation.  For the aforesaid reasons, the applicant’s claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

6.  On 3 October 2018, the applicant filed his Form 86 to apply for leave for judicial review in respect of the decisions of the Director and the Board.  As duly summarized by the Judge at [11] of the CALL-1 Form, the applicant’s grounds for his intended challenge are as follows:

(1)  The Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim.

(2)  The Adjudicator failed to give the applicant sufficient time and chance to arrange relevant evidence for his claim as well as his appeal.

(3)  The Director failed to appreciate or give proper importance or weight to the presence of state acquiescence which led to an unfair outcome of rejecting his claim.

(4)  The Director failed to take into account that the applicant was tortured at the behest of the state law enforcement agencies for which the state should be rendered liable to the applicant by cause of the state and the public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

(5)  The Director failed to consider or give enough weight to those listed COI which supported the applicant’s aversions that the police in his country would not be able to protect.

(6)  The Director failed to attain high standard of fairness required by the Wednesbury test in the decision with the argument that corruption and incompetency of the administration in his country is still a very serious problem as various human rights organizations had compiled reports which stated testament to the applicant’s assertions which show a clear case of unfair attitude against the applicant enough to render the decision void.

(7)  The Adjudicator had unlawfully fettered his discretion by refusing the applicant’s appeal on the ground that they did not satisfy the requirements.

(8)  The Adjudicator failed to meet the greater care and duty owed to a self-represented claimant.

(9)  The Adjudicator acted in a procedurally unfair manner in dealing with his appeal.

(10)  The Adjudicator had relied on COI which were outdated with the lack of credible source of information resulted in making groundless speculations.

7.  The applicant’s application was heard by the Judge on 20 May 2020 and by the CALL-1 Form of 11 August 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [12] – [16] of the CALL-1 Form:

“12.  These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way was state acquiescence relevant to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way did the adjudicator fail to give him sufficient time or opportunity to provide relevant evidence for his claim or his appeal, or how did the Director fail to apply high standard of fairness in assessing his claim, or in what way did the adjudicator unlawfully unfetter his discretion or act procedurally unfair in dealing with his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.  As such I do not find any of them reasonably arguable for his intended challenge.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 48 – 56 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.  

15.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.  

16.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

The Appeal

8.  On 21 August 2020, the applicant filed his Notice of Appeal and his grounds of appeal are set out as follows:

“The plaintiff will face hardship life if he return back to his home country and the Torture Claims Appeal Board has significantly relied on some source of news and relied on their own assumption which is not officially recognized, or it is simply hearsay. They have also relied on some cases and on considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

General Principles

9.  Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]:

(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 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.

(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 or for running arguments which could and should have been raised but not raised before 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 refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

10.  The applicant did not put forward any viable ground to challenge the Judge’s decision and the appeal is bound to fail. 

11.  Having read the decision of the Board, we take the view that the Board had carefully considered the applicant’s evidence and decided against it on the issue of credibility.  The Board did not accept that the applicant would be at risk of any harm if refouled.  It is within the province of the Board to reach its findings and conclusion and we see no basis for intervention. 

12.  We are also satisfied that the Judge had duly considered the Board’s decision carefully and we found no errors of law or procedural unfairness or irregularities in the Judge’s decision.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.