RE RAFIQ REHMAN

CACV 154/2020

[2021] HKCA 571

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 154 OF 2020

(ON APPEAL FROM HCAL NO. 1368 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 27 May 2020 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 (“Board”) dated 5 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 11 April 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 3 November 2007 as a visitor and was permitted to remain until 17 November 2007.  He overstayed and was later arrested on 19 October 2011.  He was subsequently convicted of two offences and was sentenced to 2 months imprisonment.  A removal order was made against him on 23 December 2011 and he was removed to Dhaka, Bangladesh on 16 October 2014.  On 9 November 2015, the applicant was arrested in Hong Kong as an illegal immigrant and was sentenced to 12 months imprisonment.  He then lodged a non-refoulement claim on 25 April 2016. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [1] to [10] of the CALL-1 Form.

4.  By a Notice of Decision dated 11 April 2017 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the 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 27 April 2018, the Board dismissed his appeal on 5 July 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [45] of the Board’s Decision, the Board found that the applicant’s case was credible on the balance of probabilities.  The Board held that it was nonetheless unlikely that the applicant will be subject to any of the proscribed harms upon his return to Bangladesh.  The Board was also satisfied at [56] that state protection would be available to the applicant and at [58] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 on 12 July 2018which contained the following grounds for judicial review, as summarized by the judge at [15] of the CALL-1 Form:

(1)  the Board was in breach of procedural fairness by unlawfully fettering its discretion in refusing his appeal on the ground that they did not satisfy the requirement;

(2)  the Board was in breach of procedural fairness by acting in a procedurally unfair manner in dealing with his appeal;

(3)  the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  it was procedurally unfair for him to be given the hearing bundle just six days before his appeal hearing which were all in English without translation thereby given him insufficient time to prepare for the hearing especially due to his limited skills in English and unable to find assistance from interpreter; and

(6)  the Board significantly relied on sources of news not officially recognized or were simply hearsay or outdated which resulted in the Board making groundless speculations that it would be safe for him to return to his home country.

8.  In his affirmation in support of the leave application dated 12 July 2018, the applicant expanded on his grounds for judicial review.

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 at [16] to [22] of the CALL-1 Form:

“16. These are however mostly 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 Board or the adjudicator had erred in the decision, or in what way was there procedural unfairness in his process before the Board or in its decision or that those COI relied on were outdated or hearsay. 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 his process before the Board or in its decision being clearly and properly identified by him with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

17. As has been repeatedly emphasized by the Court of Appeal, 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.

18. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

19. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

20. 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.

21. 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.

22.  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.”

Grounds for appeal

10.  In the Notice of Appeal dated 8 June 2020 the applicant contended that:

“The Director has failed to appreciate or give proper importance or weight-age to the presence of state Acquiescence in the Applicant’s case. This has led to an unfair outcome of rejecting the Applicant’s non-refoulement claim.

The Applicant submits that the Director, the Adjudicator and the Court have failed to take such argument into account or that the Director has failed to give sufficient weight to such argument before reaching the Decision.

The Adjudicator failed to make sufficient enquiring before finalizing the determination. The Adjudicator stated that the applicant has failed to advice any credible evidence to prove material elements of his claim.

It is to be noted that the applicant is a torture-claimant who has no or limited options at his disposal to bring his evidence before the tribunal when he is in custody at the immigration detention centre. The adjudicator has failed to give sufficient chance to the applicant to arrange relevant evidence relevant to his non-refoulement claim as well as his appeal.

Surprisingly, the director in his Decision while referring to relevant COIs. kept including meaning which suited his pre-conceived conclusion.  This was a clear case of unfair attitude shown by the Director which in itself is enough to render his Decision void.”

11.  In his skeleton submissions dated 2 July 2020, the applicant submitted that:

(1)  The Board failed to properly assess the credibility of the applicant and acted in a procedurally unfair manner; and

(2)  The Board’s Decision was Wednesbury unreasonable.

12.  The applicant agreed by a letter of 8 June 2020 that the appeal could be disposed of on paper without an oral hearing.

Discussion

13.  Having considered the papers, we are satisfied that the appeal can properly be dealt with on the papers without an oral hearing.

14.  The applicant advanced a number of grounds against the Board’s Decision in his notice of appeal and written submissions.  Because these grounds are not related to any error on the part of the judge, they are not reasonably arguable.  Further and in any event, these grounds lacked sufficient particulars and are bound to fail.

15.  The applicant also contended that the judge failed to consider state acquiescence.  This was the only complaint made in respect of the Judge’s judgment.  In our view, the judge was not required to consider state acquiescence because it was never raised before him.  This ground is also without merit.

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