RE MUNNA MOHAMMAD

CACV 566/2018

[2019] HKCA 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 566 OF 2018

(ON APPEAL FROM HCAL 327/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 November 2018 refusing the applicant leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 15 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 27 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 15 July 2014 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 19 July 2014. 

3.  The applicant’s claim was based on alleged threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [9] of the CALL-1 Form.

4.  By a Notice of Decision dated 27 September 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 7 December 2017, the Board dismissed the appeal on 15 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [43] and [49] of the Board’s Decision, the Board found that the applicant’s evidence was vague and very limited, and in the light of this the Board did not accept that the applicant was in fact a member of the Bangladesh Nationalist Party or that he was persecuted for being a member of that party.

The deputy judge’s decision

7.  The applicant filed a Form 86 on 2 March 2018 which contained no ground for seeking relief.

8.  In the affirmation in support of the leave application dated 2 March 2018, the applicant advanced the following grounds for judicial review:

(1)   the Board failed to inform him that his claim would be assessed against COI and other materials;

(2)   the Board failed to properly consider COI relating to human rights condition in Bangladesh and state protection;

(3)   the Board failed to consider the risks he may face upon his return;

(4)   the Board failed to consider the concept of extended state acquiescence;

(5)   the Board failed to consider his fear; and

(6)   failed to give reasons for its decision.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [28] to [36] of the CALL-1 Form:

“28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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.’

30. The Applicant complained the Adjudicator failed to inform him that his claim would be assessed against COI and ‘other materials’.

31. The Adjudicator did put to the Applicant such COI relating to BNP membership for the Applicant to respond. She was entitled to do so in order to find out whether the Applicant was really a BNP member, which was the centrepiece of his claim.

32. The Applicant mentioned ‘other materials’ in his complaint. He failed to specify what they were.

33. The Applicant complained the Adjudicator failed to give reasons for her decision. The Adjudicator had assessed the Applicant's claim in details and explained clearly why she did not accept his claim.

34. The Adjudicator had proper basis to find the Applicant's allegations were vague and untruthful. Her decision was not Wednesbury unreasonable. She did not accept the Applicant had the fear as he claimed. In light of such finding, the Adjudicator really need not go on to consider those issues of state protection, state acquiescence and internal relocation because she found the Applicant faced no fear or risk that warranted non-refoulement protection.

35. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the Applicant's case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

36. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Grounds for appeal

10.  In the Notice of Appeal dated 4 December 2018 the applicant said that:

“In Bangladesh my enemy is too powerful, they can kill me any time any place of Bangladesh, so if Hong Kong Immigration send me back I will be killed by Bangladesh police and BAL workers”

11.  In his skeleton submissions dated 22 February 2019, the applicant stated that he could not obtain any documents from Bangladesh, but that the Board should not have dismissed his claim for lack of documents.  He asserted that it was unsafe for him to return, but said that he would be willing to return to Bangladesh if the Hong Kong Government requested the Bangladeshi government to afford him protection.  Lastly, he claimed that the Director and the Board had decided to dismiss his claim without properly reviewing it.

12.  The applicant agreed by a letter of 4 December 2018 that the appeal could be heard by two judges.  We heard the appeal on 17 April 2019.  At the appeal, the applicant indicated that he had nothing to add to the matters stated in his Notice of Appeal and skeleton submissions.

Discussion

13.  The only ground of appeal in the Notice of Appeal simply repeats the assertion, rejected by the Board, that the applicant would be at risk of harm if refouled to Bangladesh.  As this court has repeatedly stated, the evaluation of the evidence and making of factual findings is within the remit of the Board, and an application for judicial review does not operate as a further appeal.  It is necessary for the applicant to show some public law ground on which the court should set aside the Board’s decision.  The bare assertion that it is unsafe for him to return is not a proper ground for seeking leave for judicial review, or for this appeal.  In any event, it is apparent from the Board’s Decision that it gave careful consideration to the applicant’s evidence, and explained clearly why such evidence was rejected.  In our view, the judge was entitled to hold, as he did at [35] of the CALL-1 Form, that there was no public law error in the Board’s Decision. 

14.  Further, the applicant does not identify any alleged error on the part of the judge, so that the matters he advances are not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.