RE UJJAL MOHAMMAD

CACV 85/2022

[2022] HKCA 897

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 85 OF 2022

(ON APPEAL FROM HCAL NO. 2068 of 2018)

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J U D G M E N T

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Hon Barnes J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 16 February 2022[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 24 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 10 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Bangladeshi national.  He was arrested by police on 3 February 2016 for remaining in Hong Kong without permission and was transferred to the Castle Peak Bay Immigration Centre on 5 February 2016.  He raised his non-refoulement claim on 4 March 2016. 

3.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed by local supporters of the Awami League (“AL”)  in Mirpur, Dhaka and in particular by a local AL leader named Sajib, due to the applicant’s membership in the Bangladesh Nationalist Party (“BNP”)  and political activities for the BNP.  The applicant also alleged that the local police had filed false charges against him, due to Sajib making a false accusation of murder against him.  The factual background was summarized at paragraphs 10 to 18 of the Board’s decision.

4.  By notice of decision dated 10 July 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk[2], persecution risk[3], torture risk[4], and BOR 2 risk[5].

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 6 October 2017, during which the applicant gave oral testimony with the assistance of a Bengali language interpreter.  The Board found that there were significant inconsistencies between the applicant’s evidence in his non-refoulement claim form and his oral evidence at the hearing. 

6.  During the hearing, the Board drew the applicant’s attention to such inconsistencies that gave the Board considerable doubt as to the applicant’s credibility.  Due to the various significant inconsistencies in the applicant’s evidence coupled with his introduction of significant new claims at the hearing stage without persuasive explanation for not raising such claims earlier, the Board concluded that the applicant had fabricated additional claims to bolster the prospect of success of his appeal.

7.  Thus the Board found that there was no real risk of harm in the event of refoulement, and on 24 September 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

8.  On 28 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation he raised a number grounds for judicial review, which the Judge summarized at [9] of the Form CALL-1 as follows:

“9. On 28 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forth the following grounds for his intended challenge:

(1)  that the Board erred in failing to maintain high standard of fairness by not holding an oral hearing to allow the Applicant an opportunity to present his case;

(2)  that the Board failed to apply minimum standard of procedural fairness in assessing his claim; and

(3)  that the Board failed to take into account that the Applicant was not legally represented and that he has insufficient legal knowledge which could jeopardize his representation in his appeal process but which the Adjudicator never advised him that he could complain.”

9.  Following a hearing on 27 January 2022 at which the applicant appeared before the Judge, on 16 February 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10 to 17] of the Form CALL-1 as follows:

“10. The first complain[t] of the Applicant of not being provided with any oral hearing for his appeal before the Board is clearly incorrect and without any factual or evidential basis, as he did appear before the Board on 6 October 2017 during which he was able to make proper representations including giving further oral evidence and answering questions raised of his claim by the Adjudicator as clearly recorded in the Board’s decision that there is simply no basis at all for this complaint of the Applicant.

11. As for his complaint under Ground (2), it is just some broad and vague assertion without any particulars or elaborations as to how the Board failed to apply judicial fairness in assessing his claim, and if the Applicant were to refer to the lack of oral hearing for his appeal, it is as already noted above simply factually incorrect and not arguable at all.

12. As for his complaint under Ground (3)  of not being provided with legal representation for his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

13. The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to make his representation to the Board including giving oral evidence and answering questions raised of his claim with the assistance of an interpreter and without any difficulty. Even now in his application before me that he had not advanced any further argument or evidence which he might not have been able to do so before the Board due to lack of legal representation. As such and in the absence of any evidence from him that the basis of his claim had indeed been wrongly interpreted or understood by the Board arising from his lack of legal representation, I find this complaint of the Applicant simply speculative and without any evidential basis.

14. 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.

15. 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 as set out in 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.

16. 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 true 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.

17.  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.”

Appeal to this Court

10.  On 21 February 2022, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that he would face hardship if he were to return to his home country, that the Board relied on news sources that were not officially recognized or were simply hearsay and on outdated cases, and that the lack of credible sources of information resulted in the Board making groundless speculations.

11.  Theapplicant did not provide any particulars in support of his grounds of appeal.

12.  The applicant lodged written submissions on appeal on 12 May 2022.  Those submissions largely consist of general legal principles and quoted passages from case authorities, without any explanation as to how they specifically apply to or advance the applicant’s case.  The applicant also submitted that the Board erred by simply trying to see whether it could find fault with the Director’s decision, that the Board failed to scrutinize the Director and that it is a general practice of the Board not to question or find fault with the Director’s decision.  As well, he submitted that the Board ought to have considered country of origin conditions.  However, he did not provide any details or particulars in support of his arguments, or identify any specific errors in the Judge’s decision.

13.  At the hearing of this appeal, the applicant stated that he had nothing to add to the written materials.

Legal principles

14.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [6]; Re Md Shohel Sheak [7]; and Re Limbu Birkhaman [8]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

Discussion

15.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or written arguments, or identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [9]; Re Aziz Nasir [10]; Re Kharsu Numan [11]; Re Salim Ahmed [12].

16.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge’s decision, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

17.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection, due to its adverse finding as to the applicant’s credibility.  Thus the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board.  The Court will not interfere with such assessments unless they are reversible on public law grounds. 

18.  The applicant has not raised any potential errors or concerns as regards the Board’s assessment of credibility.  There seem to be no valid public law grounds for reversing or interfering with the Board’s assessment.

19.  Having considered the materials before us, we are of the view that the Judge’s conclusion was justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge his decision.

20.  For these reasons, this appeal is dismissed.