TABAROK ULLAH v. DIRECTOR OF IMMIGRATION

CACV 562/2020

[2021] HKCA 1355

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 562 OF 2020

(ON APPEAL FROM HCAL NO 277 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 23 June 2020, DHCJ Bruno Chan (“the Judge”) refused 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 (“the Board”) dated 5 January 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) of 10 February 2015 rejecting his claims save for BOR2, and then of 16 May 2017 rejecting his claim based on BOR2. 

2.  By the Decision of the Judge of 8 September 2020, the applicant was granted an extension of time to file a notice of appeal within 14 days of the order (ie by 22 September 2020) as the applicant was only 2 days late and the Judge took into account possible postal delays due to COVID.  The applicant failed to do so.  However in CAMP 26/2021, the Court of Appeal (Hon Chu and Barma JJA) extended time for the Notice of Appeal to be filed on 19 October 2021. 

Background

3.  The Applicant is a national of Bangladesh who entered Hong Kong illegally on 1 March 2007 and was arrested by police on 26 November 2007.  After he was referred to the Immigration Department for investigation, on 8 December 2007 he raised a torture claim on the basis that if he returned to Bangladesh he would be harmed or killed by a group of local supporters of the political party Awami League (“AL”), as he had refused the request of a neighbour Tofazal to withdraw his support for the Bangladesh National Party (“BNP”) and support AL instead.  The factual background of this case was succinctly summarized by the Judge in [2] – [4] of the Form CALL-1 ([2021] HKCFI 476).

4.  As mentioned earlier, by his two decisions, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

5.  The applicant appealed the Director’s decisions to the Board.  As the Board had no issue on the facts raised by the applicant,[5] it decided not to hold an oral hearing.  By its decision dated 5 January 2018, the appeal was dismissed. In its decision the Board noted that he was not harmed or subjected to any violence before he left Bangladesh and there was no substantial ground for believing that there would be any risk of torture or any proscribed form of harm to him upon his return to Bangladesh.[6] The Board did not consider it was necessary to consider the possibility of internal relocation as he had not been subject to any violence and he had left the country freely, and in any event, he has many options to relocate safely in Bangladesh.[7]  For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

6.  On 22 February 2018, the applicant filed his Form 86 for leave to apply for judicial review and named the Director as the proposed respondent. However, he sought to appeal the decision dated 5 January 2018 which is the Board’s decision.  In his supporting affirmation, he attached the Board’s decision and advanced the following grounds against the Board’s decision for his intended challenge:

(1)   He was uneducated and no lawyer was provided to him for his claim.

(2)   The Board decided his case based on assumptions.

(3)   In the absence of evidence, the Board was wrong to infer that he did not have a case.

(4)   The Board erred in assessing that the level of risk of harm to him upon his return to Bangladesh was low.

(5)   He never received the letter from the Director inviting him to submit additional facts and grounds of review for his claim on BOR 2 risk and hence it was unfair to reject his said claim based on the Country of origin information (“COI”) and the facts previously provided by him.

As the grounds of review were all made against the Board’s decision, it was therefore taken that the applicant sought to judicially review the Board’s decision.  

7.  The applicant did not request an oral hearing and the Judge disposed of the application on paper.  By his decision dated 23 June 2020, the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 as follows:

“11. For his complaint in Ground (1) of not being provided legal representation in 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.

12. The Applicant already had the benefit of legal representation in presenting his case to the Director, and in his appeal to the Board his grounds and arguments for his claim remained essentially the same as before as stated in his SCF, and with no issue as to his facts or the law taken by the Board, I do not find anything amiss arising from the lack of legal representation in his appeal before the Board, and I do not think this ground is reasonably arguable.

13. Regarding his complaints under Grounds (2), (3) and (4), they were just some broad and vague assertions of the Applicant without any particulars or specifics or elaborations,whilst the findings of the Board were clearly based on the facts put before it and not on assumptions as alleged, and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any of those grounds reasonably arguable either.

14. As for the remaining Ground (5) in which he complained of not receiving the letter from the Director to submit additional facts relevant to his BOR 2 risk and that it was unfair for his such claim to be rejected based on the COI and the facts previously submitted by him, in the absence of any evidence that the Director’s letter indeed failed to reach him through his reported address, when even in his application now before me that he did not submit any further or additional facts which may be relevant to BOR 2 risk, and given the nature of his claim based on his own case that BOR 2 risk simply did not engage, the Director and the Board were in my judgment entitled to reject his claim under BOR 2 risk based on the facts previously relied on by him and on the COI available before them, and I do not find any basis or merits in this complaint of the Applicant.

15. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the Applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

16. Furthermore, the fact is that it has been established by both the Director and the Board in their decisions 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.

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

8.  As mentioned earlier, the applicant filed his Notice of Appeal on 19 October 2020.

9.  The applicant did not provide any proper ground of appeal in his Notice of Appeal.  Pursuant to the Court’s direction dated 24 June 2021, the applicant filed his Supplementary Notice of Appeal on 8 July 2021 in which he advanced the following grounds of appeal:

“The High Court refused my leave to apply for judicial review, but I do not find any important cause for refusal of my leave. The High Court did not listen my problem but he wrote my problem. The High Court did not find any error of proceeding. Total proceeding is full of error.”

10.  In compliance with the Court’s directions of 13 July 2021, the applicant lodged his written submissions on 9 August 2021.  In his written submissions, he again failed to provide any proper ground of appeal save for expressing his discontent and disagreement with the Judge’s and the Board’s decisions in refusing his claim. He had nothing to add at the hearing before this court.

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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 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.  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.

(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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

12.  The applicant failed in his Notice of Appeal, Supplementary Notice of Appeal and written submissions to provide any ground of appeal against the Judge’s decision or to identify any specific errors or any other specific potential grounds for reversing the Judge’s decision. 

13.  The Board had rejected the applicant’s case because, even on the applicant’s own account of events, he had suffered no harm or violence save for some verbal threats from the AL supporters.  The judge was entitled to find there were no grounds for judicial review. 

14.  The Judge’s observations are fully justified.  In particular, in relation to Ground (5), the applicant had failed to advance any matters relevant to his BOR2 claim even by the time the matter went before the Judge.  We are satisfied that the Judge had reviewed the Board’s decision with vigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

15.  For the above reasons, this appeal is dismissed.