RE ISLAM MOHAMMAD SAIFUL

CACV 244/2023, [2025] HKCA 402

On appeal from [2023] HKCFI 1923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 244 OF 2023

(ON APPEAL FROM HCAL 2830/2019)

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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 Bruno Chan (“the Judge”)  given on 26 July 2023 refusing leave to the applicant 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 (“the Board”)  dated 12 September 2019 (“the Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 14 November 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 1 December 2015, and was arrested by the police on the same day.  Thereafter, he lodged a non-refoulement claim made by way of written representations dated 5 December 2015. 

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 14 November 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the torture risk[2], the BOR 2 risk[3], the BOR 3 risk[4] and the persecution risk[5].  

5.  The applicant appealed to the Board.  After a hearing on 28 May 2019, the Board dismissed the appeal on 12 September 2019 by the Board’s Decision.  The Board’s Decision covered all applicable grounds for non-refoulement protection.  The Board found, inter alia, that the applicant’s evidence on material events giving rise to the alleged risk of harm was inconsistent and incredible.  The Board took particular note of the fact that the applicant had voluntarily returned to Bangladesh during the material period, which goes against his apparent fear of serious harm if refouled.

The Judge’s decision

6.  The applicant filed a Form 86 on 25 September 2019 seeking to judicially review the Board’s Decision, without setting out any grounds for review.  In the applicant’s supporting affirmation, he merely stated that the Board’s Decision was “biased”, “irrelevant”, and was allegedly made based on information which was “inapplicable and inaccurate”.

7.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [9] to [14] of the CALL-1 Form:

“9.  On 25 September 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that the decision was biased and irrelevant, and was based on biased information which were inapplicable or inaccurate but without providing any details or particulars or elaboration as to how it was so, nor was he able to do so at the hearing of his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

10.  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.

11.  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 22–32 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.

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

13.  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.

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

Grounds for appeal

8.  In the Notice of Appeal dated 3 August 2023, the applicant set out his grounds of appeal in a document entitled “Opening Statement”, which was attached to and filed with the Notice of Appeal. Essentially, the applicant maintained that it was still dangerous for him to return home, and that the Board’s Decision should not be allowed to stand because he was prejudiced by his lack of legal knowledge as well as his inability to speak and write English.

9.  In breach of the directions made by the Registrar of Civil Appeals, the applicant failed to lodge his written submissions with the court.  In the circumstances, the applicant is deemed to have abandoned his right to rely on written submissions.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

11.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

12.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

13.  The applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

14.  We are also unpersuaded by the applicant’s complaint of prejudice caused by his lack of legal representation.  As this court has repeatedly held, it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

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