RE HOSSAIN ABUL

CACV 175/2020

[2020] HKCA 957

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 175 OF 2020

(ON APPEAL FROM HCAL NO. 1417 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 2 June 2020.

1.2  This appeal was scheduled to be heard on 16 November 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 29 July 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by certain local supporters of the Awami League for failing to pay extortion money.  The applicant claimed to be a general secretary of the rival political party in his district.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [4] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 8 August 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 30 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 June 2018.

4.2  The Board found that material allegations of the applicant were not supported by objective evidence.  There was no evidence that the applicant was a member of the Bangladesh Nationalist Party and even if there were he was only a grass-roots level member or supporter.  It was found that 12 to 14 people did approach the applicant’s restaurant to extort money, but it cannot be found that they made killing threats to the applicant, nor that they had any connection with the Awami League.  There was no evidence that the Awami League was looking for the applicant actively.  It was not accepted that even at the time of the Board’s hearing the Awami League was still looking for the applicant after three years.  There was no evidence that the applicant suffered any physical or mental injuries of the requisite severity from its members.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with supporting affirmation before the Judge.

5.2  The Judge did not accept the applicant’s bare claims without particulars. He held that finding of facts was within the province of the Director and the Board.  As the applicant did not show any prospect of success, he refused to give leave to apply for judicial review.

6)  Grounds of appeal

6.  The applicant in his notice of appeal stated that the Board relied on source of information which was not officially recognized or simply hearsay and it relied on cases which were outdated.  Hence the decision was based on speculations.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(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 the 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 their decisions.

(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.  In the determination for 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 a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.