RE GONI MOHAMMAD OSMAN

CACV 118/2019

[2019] HKCA 796

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 118 OF 2019

(ON APPEAL FROM HCAL NO. 347 of 2018)

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JUDGMENT

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Hon Andrew Chan J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 28 February 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  According to him, he departed Bangladesh for the mainland China on 3 October 2015 and entered Hong Kong illegally on 16 October 2015.  He was arrested by the police on the same day of his arrival.  He lodged a claim for non-refoulement protection on 21 October 2015.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by the local leaders of Awami League because the applicant refused to join them.  The applicant claimed that he was a supporter of the rival political party the Bangladesh Nationalist Party (“BNP”).  The background facts of this case were summarized by the judge in [2] – [6] of the Form CALL-1 ([2019] HKCFI 182).

4.  By a notice of decision dated 1 September 2017^[1], the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and determined the claim against the applicant.  The decision covered the risk of violation of the absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk^[2] and the BOR 3 risk^[3]), the persecution risk^[4], and the torture risk^[5].

5.  The applicant lodged an appeal / petition to the Torture Claims Appeal Board / an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 20 December 2017, but the applicant elected not to testify thereat.  Having considered the applicant’s case, the Board found that the incidents described by the applicant were not targeted at him.  Nor did it find that the applicant had suffered serious injuries from the incidents.  The applicant was able to reside in other parts of Bangladesh without encountering any problem.  The Board found no evidence that the state had any direct or indirect involvement in the incidents described by the applicant.  The Board was not satisfied that the applicant would face any real risk of being subjected to ill-treatment if refouled.  By a decision given on 14 February 2018[6], the Board dismissed the applicant’s appeal / petition.

The judge’s decision

6.  The applicant filed his Form 86 on 5 March 2018, seeking leave to apply for judicial review against the Board’s decision.  The grounds for seeking relief were contained in a document entitled “Grounds on which Relief is sought” ^[7] attached to the Form 86.  The grounds were summarized by the judge at [11] of the Form CALL-1.

7.  Upon the request of the applicant, an oral hearing was held on 11 January 2019.

8.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [12] – [17] of the Form CALL-1 as follows:  

“12. These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in the decision, or in what way were their decisions wrong or unfair or unreasonable in assessing his claim, or how are extra-judicial killings relevant to his claim, or how did the adjudicator fail to give him time or opportunity to arrange for relevant evidence to support his claim or appeal before the Board. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even at the hearing of his application now before me, he did not provide any further evidence or representation regarding his claim. There is simply no basis or merit in any of these complaints of the applicant.

13. As has been repeatedly emphasized by the Court of Appeal, 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 those decisions being 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 Re Litoun Mounsy [2018] HKCA 537.

14. In the present case the applicant refused to answer questions to clarify or elaborate his evidence in the documents before the Board at the invitation of the adjudicator, and there was therefore no objective evidence to support his material assertions. Based on his evaluation of the evidence before the Board, the adjudicator was entitled to reject the applicant’s claim which is within his province, and with which the Court in its judicial review jurisdiction will be slow to interfere.

15. Furthermore, the fact 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, with which the Board agreed when it confirmed his decision, there is simply no justification to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16. 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 or irrationality 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.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

9.  On 12 March 2019, the applicant filed a notice of appeal.  In it, the applicant stated the followings:

“Hong Kong Bill of Right Ordinance should be use to check my claim and quash all previous order and decision.” (sic)

10.  The applicant lodged his written submission on 10 June 2019.  In it, the applicant asserted that the Board neither gave sufficient time for him to check the hearing bundle, nor provided him with a translated copy of it.  It was also said that the interpretation service rendered to him was not good.  He then expressed his dissatisfaction of the judge’s decision.

11.  By a letter dated 12 March 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

12.  We heard the appeal on 15 July 2019.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this court has adopted in determining an appeal for non-refoulement cases.

(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 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 the decision of the Board;

(2)   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)   It follows from the above that in an appeal, the scope for admission for new arguments to be run is limited.  This court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time; and

(4)   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.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  In the present case, the Board rejected the applicant’s claim because it was not satisfied that he would face a real risk of being subjected to ill-treatment if refouled.  The assessment included the risk of violation of the absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights.  As the judge correctly pointed out in [13] of the Form CALL-1, the evaluation of the risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

15.  The applicant provided no particulars in support of his challenge against the Board’s assessment in relation to the risk of violation of rights guaranteed under the Hong Kong Bill of Rights.  The assertion as stated in the notice of appeal was vague and general, and cannot constitute a valid ground of appeal.

16.  The applicant has never complained about the delayed delivery of the hearing bundle, the lack of translated copy thereof, or the quality of the interpretation service.  As explained above, this court will not entertain any new arguments that are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.  In any event, the applicant provided no particulars as to how these complaints would render the process unfair, and there is no evidential basis for us to accept that.

17.  In this appeal, the applicant failed to pinpoint any viable ground that could reverse the decision of the judge.  Having considered the materials available before us, we cannot find any of such ground either.  In our view, the judge’s observations are fully justified.  We agree that leave to apply for judicial review should be refused.

18.  For these reasons, we dismiss the appeal.