RE AKHONDO SHAKIL

CACV 175/2021

[2021] HKCA 1616

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 175 OF 2021

(ON APPEAL FROM HCAL NO 2256 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  On 9 April 2021, Deputy High Court Judge Bruno Chan (“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 (“Board”) dated 9 October 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 11 January 2017 rejecting the applicant’s non‑refoulement claim.

2.  On 19 April 2021, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is a Bangladeshi national.  He was arrested by the police in Hong Kong on 16 February 2016 for illegally remaining here and was referred to the Immigration Department on 19 February 2016.  He lodged his non‑refoulement claim on 14 March 2016. 

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by supporters of the Awami League, because he was a member of the Bangladesh Nationalist Party (“BNP”).  The factual background of his claim was summarized at [10] to [18] of the Board’s decision.

5.  By notice of decision dated 11 January 2017, the Director assessed the applicant’s claim on all applicable grounds determined it against him.  The applicable grounds are BOR 3 risk,[1] persecution risk,[2] torture risk[3] and BOR 2 risk.[4]

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 13 July 2017, during which the applicant gave evidence and answered questions from the Board.  The Board had significant concerns with the applicant’s credibility, due to his oral evidence at the Board hearing differing considerably from his claims and evidence provided to the Director.  In particular, the applicant was inconsistent as to his age when he joined the BNP, and also as to the year in which he sustained injuries from rubber bullets.  As stated in [33] to [38] of its decision, the Board had raised those inconsistencies with the applicant at the hearing, and also noted his explanations.

7.  As a result of the inconsistencies in the core aspects of the applicant’s evidence, the Board did not accept that the applicant had been targeted or harmed in the past in Bangladesh either by members of the Awami League or by the police or other government agencies, and found that there was nothing in his profile that would attract adverse attention from the Awami League or the authorities in Bangladesh.  The Board concluded that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 9 October 2018 with regard to all the applicable grounds.

Decision of the court below

8.  On 18 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision, but did not state any grounds for judicial review in his Form 86 or supporting affirmation.  However, the Judge noted at [9] of the Form CALL‑1 ([2021] HKCFI 1955, HCAL 2256/2018) that the applicant raised a number of grounds in his written submissions, summarized below:

(1)  the Board was unreasonable in making speculative findings with respect to the assessment of risk;

(2)  the Board failed to properly consider and assess country of origin information (“COI”);

(3)  the Board made a mistake of fact and/or failed to consider a relevant factor that the applicant’s risk of harm stemmed from his political opinion and BNP membership and that the risk was a continuing one.

9.  Following consideration of the documents only, on 9 April 2021 the Judge refused to grant leave to apply for judicial review.  The core reasons for the refusal were set out at [10] and [18]‑[22] of the Form CALL‑1 as follows:

“ 10. However, upon close examination of the affirmation, these grounds appear to me something just copied from those used in a different case of another applicant, as the references of various facts said to have been mentioned by the Adjudicator simply do not correspond with those actually stated in the Board’s decision, nor are they factually accurate or relevant to the asserted facts or basis of the Applicant’s own case. There are many examples.

…

18. As such and in the premises, it is clear to me that none of the grounds raised by the Applicant are factually relevant or applicable to his case, and as such it is clear that they are not reasonably arguable for his intended challenge.

19. 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.

20. 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 set out in paragraphs 61‑77 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.

21. Furthermore, the fact is that it has been established by the Director in his 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, 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.

22. 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 19 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal are that:

(1)  the Judge wrongly concluded that the Board had not erred;

(2)  the Board hearing bundle was not fully translated and was not read back to the applicant; with little or no language or legal assistance, it was unfair and detrimental to expect him to be prepared for the Board hearing;

(3)  procedural impropriety/unfairness due to the Board and the Judge failing to sufficiently research and inquire into relevant and up to date country of origin information (COI);

(4)  the applicant had no means of finding out if his testimony was mistranslated or wrongly interpreted by the interpreter at the Board hearing.

11.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

12.  The applicant lodged his written submissions on appeal on 9 June 2021.  Those submissions consist partly of pro forma arguments and statements taken from other documents and which are incoherent or clearly inapplicable in this case, eg a statement referring to detention in Delaware, which was never part of the applicant’s claim.

13.  To the extent that the submissions contained any intelligible arguments, the applicant built upon his ground of appeal that the Board failed to research and inquire into up to date COI, by arguing that the Board failed to consider COI from after July 2016.  The applicant also argued that the Board’s approach to evaluating key evidence was unfair, and that the Board mischaracterized the evidence.  Further, he argued that the Board failed to assess availability of state protection or whether there was a consistent pattern of gross and mass human rights violations in Bangladesh.

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 [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  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.  The applicant did not in his Notice of Appeal or written submissions provide any particulars in support of his grounds of appeal, 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 [2019] HKCA 20.

16.  As we will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there are no such grounds advanced 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 based on its adverse finding on his credibility.  As such, the Board found that there was no real risk of harm in the event of refoulement.  Such findings are open to the Board on the evidence, and the court will not interfere with such assessments unless they are vitiated on public law grounds.  As the Judge explained in his decision, there were no valid grounds for judicial review raised by the applicant.

18.  As the Board’s decision turned on the applicant’s credibility and as his core allegations about risk of harm were not accepted, his submissions in relation to COI are irrelevant.  Further, the applicant did not provide any particulars as to his argument that the evidence was mischaracterized or unfairly evaluated by the Board.

19.  It is insufficient for the applicant to assert that a lack of legal and language assistance resulted in procedural unfairness, without at least raising specific details as to where or how the Board or the Judge fell into error or the procedures were unfair or unreasonable as a result.  Without such details, the argument is untenable.

20.  The applicant was legally represented and provided with language assistance in his claim before the Director.  As this Court has repeatedly held, the high standard of fairness required by law does not mean legal or interpretation service has to be made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403.

21.  As to the possibility that his testimony was mistranslated at the Board hearing, this ground was not raised in the application for judicial review.  In any event what is simply asserted now is that the applicant did not have the means of finding out if there was a mistranslation.  If there were doubts as to the accuracy of translation at the Board hearing, the applicant should have raised those immediately, or as soon as practicable upon learning of any errors in the translation.  This affords no proper ground of appeal against the Judge’s decision.

22.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  There is no reasonably arguable ground for judicial review.  The Judge was right to refuse leave.

23.  For these reasons, the appeal is dismissed.