MOHAMMAD NAEEM v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMNT CLAIMS PETITION OFFICE

CACV 616/2020

[2021] HKCA 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 616 OF 2020

(ON APPEAL FROM HCAL NO 1435 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

Introduction

1.  On 11 November 2020, Deputy High Court Judge C P Pang (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 16 July 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 30 November 2017 rejecting the applicant’s non-refoulement claim. 

2.  On 23 November 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a national of Bangladesh.  He last arrived in Hong Kong on 27 November 2005 as a visitor and was permitted to stay until 11 December 2005.  He overstayed and was arrested by the police on 26 January 2007.  He was then referred to the Immigration Department for investigation and, on 6 February 2007, he lodged a torture claim on the basis that, if he returned to Bangladesh, he would be harmed or even killed by a group of gangsters known as the Omar Group (“the OG”) who started to extort money from him in 2000 but he refused to pay and dodged from them.  In 2002, he decided to leave for Hong Kong as he feared for his life. Since then, he moved in and out of Hong Kong until he last arrived in Hong Kong in November 2005. The factual background was succinctly summarized by the Judge in [2] to [4] of the Form CALL-1 ([2020] HKCFI 2736). 

4.  His torture claim was first rejected by the Director on 4 October 2011.  He lodged a petition against that decision which was refused by the then Adjudicator of Petition Team, Security Bureau, on 11 November 2011.  By consent, the determinations of the Director and the Adjudicator were quashed and the torture claim was remitted to the Director to be determined afresh. 

5.  By a Notice of Decision dated 30 November 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and rejected it.  The Decision covered BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4]. 

6.  The applicant lodged an appeal to the Board against the Director’s decision and attended a hearing before the Board on 4 July 2018.  By its decision dated 16 July 2018, the Board rejected the appeal and confirmed the Director’s decision. 

7.  The detailed reasons for rejecting the Applicant’s claim were set out at [58] to [95] of its decision.  In summary, the Board found (i) the applicant’s evidence in relation to the claimed threats by the OG was vague and not credible, (ii) there were numerous inconsistencies in his evidence, (iii) the 3 newspaper clippings produced by him purportedly relating to the 2001 murder by the OG of Delawar Hossain, general secretary of the Committee of the Alam Market where the Applicant used to do hosiery business, were questionable as to their reliability and (iv) he did not ask for protection when he first came to Hong Kong in 2002 or when he last entered Hong Kong in 2005 but only applied for non-refoulement protection after his arrest for overstaying in 2007.  After due consideration of the relevant COI, the Board further found state protection is available and internal relocation is a reasonable and viable option.  For the aforesaid reasons, the Board found that the Applicant would not be at real risk of any type of the prescribed harm, if refouled, and dismissed the appeal on all applicable grounds.

Decision of the court below

8.  On 20 July 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In the Form 86, the Applicant did not set out any grounds for the relief sought.  In his supporting affirmation, he attached a 2-page document entitled “Analysing the refusal letter” in which he referred to a case, a legal article and some general principles without explaining how they related to or might assist his application.

9.  The applicant did not request for an oral hearing.  The Judge therefore considered the application on paper.  By his decision dated 11 November 2020, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [17] – [28] of the Form CALL-1 as follows:

“17. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

18. When the Applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

19. In the present case, the Board in fact rejected the Applicant’s appeal/ petition on the ground that it disbelieved the Applicant and found him to be an incredible witness. The Board rejected his account of primary facts based on the major inconsistencies and implausibility in his evidence. On the factual findings, there would be no factual basis in support of any of the applicable grounds. Moreover, the Board found state protection and internal relocation are available to the Applicant.

20. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

21. The Applicant stated no grounds of the judicial review in Form 86. The 2-page ‘Analysing the refusal letter’ only referred to some general legal principles. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. I fail to see the relevance of the purported legal principles to the present case. In the absence of any error of law or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

22. The Applicant’s claim is very weak. He claimed to come to Hong Kong in 2002 to seek protection. However, he did not lodge his claim for protection until he was arrested for overstaying in 2007. He also travelled in and out of Bangladesh from 2002 to 2005. The Applicant’s conduct was inconsistent with someone in genuine fear for his life and safety.

23. Further, even if one gives his account the most favourable interpretation, the alleged past ill-treatment or experience were of low intensity and frequency demonstrating no real risk of future harm. It came nowhere near the level of severity required by law to constitute torture or CIDTP. There was no valid reason why the Omar group would target him and still wish to pursue him after so many years.

24. The evidence can hardly establish that the Applicant would be at real risk of being subjected to any type of ill-treatment or proscribed harm, if refouled.

25. Both the Director and the Board engaged in a joint endeavour with the Applicant and considered all relevant criteria. They gave the Applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

26. There cannot be any criticism of the fairness and reasonableness of the decisions of the Director and the Board.

27. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.

28. For the reasons given, there is no prospect of success in the Applicant’s intended application for judicial review.”

Appeal to this Court

10.  On 23 November 2020, the applicant filed his Notice of Appeal against the Judge’s decision in which he advanced the following grounds:

“[T]he grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

11.  On the same day that he filed his Notice of Appeal, the applicant requested the appeal to be heard by 3 judges.

12.  In compliance with the Court’s directions of 28 April 2021, the applicant lodged his skeleton submission on appeal on 28 May 2021.  In the submission, he quoted passages from ST v Director of Immigration[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289.  He stated some general principles in relation to “high standards of fairness” and “Wednesbury unreasonableness” of an administrative body’s decision.  The Applicant complained that the Board had acted in a procedurally unfair manner without properly assessing his credibility.  Lastly, he referred to section 37ZT of the Immigration Ordinance about late filing of notice of appeal to the Board but did not explain how the section is relevant to his case.

13.  At the hearing, the applicant confirmed he had nothing further to add.

Discussion

14.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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.

(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 into 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

15.  The applicant did not in his Notice of Appeal identify any error in the Judge’s decision or advance any ground for reversing the Judge’s decision in the sense used above.  The grounds of appeal stated in it are only directed against the Board. 

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection after an assessment of the evidence, COI materials, risk of harm, state protection and viability of internal relocation.  These are primarily within the province of the Board and the Judge was entitled not to intervene in the Board’s decision since no valid public law grounds had been shown. 

17.  In relation to the matters stated in the skeleton submissions, they are general assertions without particulars and cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244. 

18.  As the applicant fails to provide any viable ground of appeal against the Judge’s decision, his appeal is bound to fail. 

19.  Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny.  We are of the view that the Judge’s observations are fully justified, he has applied the relevant legal principles correctly and we cannot find any flaws in his analysis.  The Judge was entitled to refuse leave. 

Order

20.  For the above reasons, this appeal is dismissed.