RE JONY HOSSAIN

CACV 349/2020

[2021] HKCA 199

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 349 OF 2020

(ON APPEAL FROM HCAL NO. 1481 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”) made on 28 July 2020 in HCAL 1481/2018 refusing leave to the applicant to apply for judicial review against the decisions of the Director of Immigration (“the Director”) dated 26 January 2018 and Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 19 July 2018.

Background

2.  The Applicant is a national of Bangladesh who last entered Hong Kong illegally on 22 January 2014 and was arrested by police on the same day.  He was then transferred to the Immigration Department for investigation.  On 17 November 2017, he raised a non-refoulement claim by way of written representation on the basis that if he were to return to Bangladesh he would be harmed or killed by some local gangsters for refusing to pay extortion money.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 304. 

3.  By the Notice of Decision dated 26 January 2018, 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].

4.  The applicant appealed to the Board.  After an oral hearing on 27 June 2018, the Board dismissed the appeal on 19 July 2018.  For the reasons stated in [23] and [24] of the decision, the Board found that the applicant had exaggerated his claim and doubted that those local gangsters would still have any adverse interest in him after all these years especially when the land in dispute had already been sold by his mother.  The Board did not find any evidence of official involvement and concluded that state/police protection would be available to the applicant and in any event, internal relocation to large cities such as Chittagong, Khulna or Dhaka to avoid those gangsters is a reasonable and viable option.  For the aforesaid reasons, the applicant’s non-refoulement protection claim failed on all applicable grounds.

The Judge’s decision

5.  On 27 July 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 set out by the Judge at [13] of the CALL-1 Form, the applicant put forward the following grounds for his intended challenge:

(1)  The Director and the Adjudicator reached their decisions wrongly in assessing his non-refoulement claim as they were not fair or reasonable.

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

(3)  The Director failed to take into account the applicant’s argument that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence.

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

(5)  The Director relied on COI which suited his pre-conceived conclusion which was a clear case of unfair attitude enough in itself to render the decision void.

(6)  The Director failed to consider the fact that corruption and incompetency of the administration in his country is still a very serious problem as evidenced by the reports of various human rights organizations as asserted by the applicant.

(7)  The Director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered as unreasonable in the scope of public law.

6.  The Judge heard the case on 18 December 2019 and by the CALL-1 Form of 28 July 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [14] to [17] of the CALL-1 Form:

“14.  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 did they fail to apply high standard of fairness or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence to his claim when he never made any reports to the police or sought their assistance.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and in the absence of any error of law or procedural unfairness in the decisions being clearly and properly identified by him with sufficient detail or particularity, I do not find any of his proposed grounds reasonably arguable for his intended challenge.

15.  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.

16.  In the Applicant’s case, the fact is 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.

17.  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

7.  On 11 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is as follows:

(1)  The Director failed to appreciate or give the proper importance or weight to the presence of state acquiescence in the applicant’s case and this had led to an unfair outcome of rejecting his non-refoulement claim.

(2)  The Director, the Adjudicator and the Court failed to take his argument into account or that the Director failed to give sufficient weight to his argument before reaching their respective decisions.

(3)  The Adjudicator failed to make sufficient enquiry before finalising the determination and concluding that the applicant had failed to give any credible evidence to prove the material elements of his claim.

(4)  This was a clear case of unfair attitude shown by the Director that should render the decision void.

8.  In compliance with the direction given by Master Tsui on 24 November 2020, the applicant lodged his written submissions on 18 January 2021.  In his written submissions, he advanced the following:

“I beg most respect fully to state that I have many problems in Bangladesh, to save my life I came 2^nd time in Hong Kong. My family members told me my problem was solved so I return but I could not stay as my enemy was disturbing me, only six month I was in Bangladesh but a single day I could not sleep with my family, even I aide myself in jungle. But the Director of Immigration did not trust or believe me, they refused my claim. It is impossible for me to return. I will die but not return Bangladesh.”

9.  We heard the appeal on 22 February 2021. 

General Principles

10.  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

11.  The grounds of appeal against the decisions of the Director and the Board are similar to those advanced before the Judge as set out in [5] of this judgment.  They were duly canvassed and rejected by the Judge in the hearing below with reasons stated at [14] to [17] of the CALL-1 Form.  With the legal principles stated above, mere regurgitation of arguments advanced and rejected by the Judge is not a permitted course in the appeal.

12.  Here, the Board rejected the applicant’s case and concluded that he failed to prove his case that he was the owner of the land in dispute or that he had been inflicted with any or any severe mental or physical suffering.  The Board also found his story implausible, inconsistent and based on pure hearsay and thereby rejected his case on all applicable grounds.  It was perfectly open for the Board to reach its findings and conclusion and the court would not intervene unless they are reversible on public law grounds which we found none in this case. 

13.  We are also satisfied that the Judge had reviewed the Board’s decision carefully and his decision is without flaw.

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