RE SHEIKH MD ROMJAN

CACV 455/2020

[2021] HKCA 485

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 455 OF 2020

(ON APPEAL FROM HCAL 830 OF 2018)

________________________

________________________

____________________

J U D G M E N T

____________________

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 3 September 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2020] HKCFI 2229.

2.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 7 May 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 11 August 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  The applicant filed his Notice of Appeal on 10 September 2020.  He also filed his skeleton submissions on 26 February 2021 as directed by the Registrar of Civil Appeals.  By a letter dated 10 September 2020, the applicant gave consent to the appeal being heard by a two-member court.

A.      Background

4.  The applicant is a national of Bangladesh.  He arrived Hong Kong illegally on 7 August 2015 and surrendered to the Immigration Department on 12 August 2015.  He lodged a non-refoulement claim on 21 April 2016.

5.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s Decision, and paragraphs 13 ‑ 29 of the Board’s Decision.

6.  The applicant claimed that he would be harmed or killed by his ex-wife’s family members who were members of Awami League (“AL”). The applicant claimed to marry his ex-wife in 2010.  His ex-wife and her family members were influential AL members.  Their marriage deteriorated later on as he suspected that his ex-wife stole money from him.  On 12 July 2012, his ex-wife went back to her parents’ house and on the next day a crowd of people approached the applicant. The applicant escaped to the neighbouring village.  On 15 July 2012, his ex-wife filed a fake police complaint, saying that the applicant assaulted her in order to extort him.  After he divorced and paid the ex-wife, the applicant claimed to receive constant threats and demands from his ex-wife’s family members.  Eventually, he fled to Hong Kong for protection.

B.      The Director’s Decision and the Board’s Decision

7.  The Director assessed the BOR3 risk^[1], the persecution risk^[2], the torture risk^[3] and the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decision to the Board.  A hearing for the appeal was held on 8 March 2018, during which the applicant answered questions from the Board with the assistance of an interpreter.  Having considered the oral evidence and the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

9.  The Board reminded itself of the applicable legal principles.  It accepted certain aspects of the applicant’s claim such as his marriage, the subsequent marital problem, the ex-wife’s filing of the police report and their divorce.  However, the Board rejected the rest of his evidence, including the threats and attempted attacks from the ex-wife’s family, which were the crux of his fear as the applicant failed to provide cogent explanations for the inconsistences in his account of these events (paragraphs 73 - 79 of the Board’s Decision).  In any event, the Board also concluded that both state protection and internal relocation were available to the applicant (paragraphs 81 - 89 of the Board’s Decision).  Thus, the Board dismissed his appeal.

C.      The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 14 May 2018.  He did not advance any grounds of review in either his Form 86 or supporting affirmation.  Neither did the applicant request an oral hearing. Yet, in his skeleton submissions of 20 May 2020, he advanced several grounds that turned out to be irrelevant to his leave application, as explained by the Deputy Judge at [11] - [12] of the Deputy Judge’s Decision:

“11. On 14 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date which he merely attached copies of the decisions and other documents previously submitted for his claim without putting forward any proper ground for his intended application, nor did he request any oral hearing for his application, but on 20 May 2020 he filed a written submission in which he put forward the following grounds for his intended challenge:

(a) that the adjudicator was unreasonable in making speculative findings with regard to his assessment of risk when he in fact had accepted the fact of the ‘1^st incident’ whereby the Applicant and his friends ‘were attacked by a number of AL members’ at paragraph 26 of the decision when the adjudicator instead ‘speculated on the intention of the perpetrators and the degree of harm they intended to inflict, and further speculated as to how the incident could and should have unfolded suggesting an alternative scenario that could presumably support a conclusion that the Applicant’s fear of the AL was justified’;

(b) that the adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor, and instead he only referred to one source of COI namely the World Population Statistics Website which only provided basic information about the city of Dhaka and could not have assisted him in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation which had no bearing on whether the Applicant was at risk of political violence from the AL; and

(c) that the adjudicator made mistake of fact and/or failed to take a relevant factor namely that the Applicant’s risk of harm emanates from his political opinion generally when the adjudicator in ‘paragraphs 13, 23, 28 and 33 of the decision’ considered the basis of the Applicant’s claim to be the ‘grudge’ harboured by AL and accordingly throughout the decision he consistently attributed the Applicant’s fear solely on ‘the incident of the 2001 and 2004 and 2019 election’ when in fact the Applicant’s fear of harm ‘emanates from his membership of BNP and the risk of harm at the hands of AL members with the confrontation on Election Day merely being a triggering event’.

12. However, upon close scrutiny all these grounds appear to me to have been borrowed from somebody else’s case for use in the Applicant’s own, as those references as to paragraphs 26 under Ground (a) or paragraphs 13, 23, 28 and 33 under Ground (c) clearly do not conform with those in the Board’s decision in the Applicant’s case, or for that matter of the Director’s decision, as the Applicant’s claim even on his own case involved a personal dispute with the family of his former wife over monetary matter and not of any political elections involved with the AL members as mentioned in these grounds, while I do not find anything wrong with the reliance of both the Director or the Board on the relevant COI including World Factbook of US Central Intelligence Agency, and not the ‘World Population Statistics Website’ mentioned under Ground (b) as to the option of internal relocation within Bangladesh available to the Applicant. As such none of these grounds are relevant to the Applicant’s claim, and in the absence of any error of law or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.”

11.  After considering the documents, the Deputy Judge refused to grant him leave to apply for judicial review with reasons set out at [13] - [16] of the Deputy Judge’s Decision:

“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; 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 fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.

15. 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.

16. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

D.      Grounds for appeal

12.  The applicant’s grounds of appeal in his Notice of Appeal are essentially these: (a) the Deputy Judge was wrong in concluding that the Board did not err in its decision; (b) the Board wrongly adjudicated that he was not a credible witness; (c) there was lack of clarify and transparency in the hearing bundle which was not translated to him; (d) the interpreter had wrongly translated his words.

13.  In the applicant’s skeleton submissions, after repeating his personal background and procedural background of his non-refoulement claim, he listed out several grounds against the Board’s Decision, which could be summarized into the categories of procedural unfairness and irrationality[5].  Insofar as the challenge against the Deputy Judge’s Decision is concerned, the applicant argued that the Deputy Judge did not give sufficient reasons and that he did not examine the Board’s Decision under rigorous examination and anxious scrutiny[6].

14.  At the hearing, other than relying on all the matters stated in the Notice of Appeal and his written submissions, the applicant sought to submit to this court two new “certificates” to show that he and his family were still subject to torture in his home town.  However, given that these new documents were never submitted to the Director, the Board and the Deputy Judge, and there is no good reason why they were not obtained and provided at least to the Deputy Judge, this court would not receive and consider them as part of the evidence relied on in support of this appeal.

E.      Discussion

15.  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.  They can be summarized as follows.

16.  First, 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 and COI materials, 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.

17.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  Third, 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, we are of the view that this appeal has no merit.

21.  First, the grounds against the Deputy Judge’s Decision in the applicant’s skeleton submissions are bare and general assertions.  They did not identify any errors with sufficient particularities in the Deputy Judge’s Decision.  Further, we are satisfied that the Deputy Judge’s aforesaid reasons in dismissing the applicant’s leave application are sufficient and thorough.  The applicant simply failed to point out why the Deputy Judge was wrong in so holding.  These are therefore not viable grounds.

22.  Second, the remaining grounds and arguments advanced by the applicant against the Board’s Decision in the Notice of Appeal and the skeleton submissions are new and was not argued before the Deputy Judge. Neither did he complain about the hearing bundle nor the issue of the interpreter before the Board or the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature,  new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

23.  Third and in any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.       Disposition

24.  For all these reasons, we dismiss the appeal.