RE SARDER ABDUL MAZID

CACV 254/2022

[2023] HKCA 260

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 254 OF 2022

(ON APPEAL FROM HCAL 248/2019)

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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 KW Lung (“the Judge”) given on 6 April 2022 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 17 December 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 1 November 2017 (“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 March 2016, and he surrendered himself to the Immigration Department on 2 March 2016.  Thereafter, he lodged a non-refoulement claim on 15 August 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by members of the Awami League (“AL”), as well as a fear of being arrested by the police for false cases filed against him by leaders of the AL.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 1 November 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  After a hearing on 11 September 2018, the Board dismissed the appeal on 17 December 2018 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the inconsistencies and discrepancies in the applicant’s evidence rendered him an incredible witness.  The Board also rejected the applicant’s fear of arrest by the police, as there were material inconsistencies in his evidence in that regard.

The Judge’s decision

6.  The applicant filed a Form 86 on 28 January 2019 seeking to judicially review the Board’s Decision.

7.  In the applicant’s supporting affirmation, he repeated the potential problems he would allegedly face should he be refouled to Bangladesh.  He also complained that the officer for the Director at the screening interview had asked him “unnecessary question[s]”.   

8.  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 [12] to [18] of the CALL-1 Form:

“12.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1) …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.’

15.  There is no valid reason from the applicant to challenge the Board’s Decision.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

18.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal dated 24 June 2022, the applicant merely stated:

“The High Court did not find any error of proceeding but I can show many error. Give me a chance to show the error of the adjudicator. My apply should not be refused.”

10.  Notwithstanding that the Notice of Appeal was filed out of time, as the delay was in part due to the closure of the court’s registry by reason of the pandemic, the Judge granted an extension of time to the applicant to file his Notice of Appeal.  

11.  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 filed with the court.

12.  The applicant also lodged written submissions on 11 July 2022, in which he repeated his fears of returning to Bangladesh and complained that the adjudicator of the Board “did not give [him] time” and “did not ask any relevant question”.

Discussion

13.  The applicant has in his 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.

14.  In his application in the court below, the applicant provided no particulars as to any respects in which the Board had acted unlawfully or procedurally unfairly in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

15.  As to the applicant’s complaint that the Board “did not give him time” or had asked him “unnecessary questions”, he has failed to particularise his allegations.  We note that the applicant appeared before the Board at an oral hearing and there is nothing to suggest that he was unable to properly present his case to the Board.

16.  In any event, 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.

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

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