RE SHAH ALAM MIAH

CACV 141/2022

[2022] HKCA 1050

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 141 OF 2022

(ON APPEAL FROM HCAL NO. 252 of 2019)

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JUDGMENT

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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 To (“Judge”) on 4 April 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 14 January 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 16 January 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a Bangladeshi national.  He last arrived in Hong Kong on 12 September 2001, and was permitted to remain as a visitor until 15 September 2001.  He did not depart, and overstayed.  The applicant was arrested by police on 26 January 2008 for overstaying, and was referred to the Immigration Department on 30 January 2008.

3.  On 2 February 2008, the applicant lodged a torture claim. The torture claim was rejected by the Director on 27 January 2012, and the applicant’s petition against that decision was rejected by the Board on 13 March 2012.  Under the current Unified Screening Mechanism, the applicant raised his current non-refoulement claim, on applicable grounds other than torture risk[2], on 29 April 2017. 

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by a gangster, and S’s father who was the Commissioner of the ward in Dhaka in which the applicant formerly resided (the Commissioner), due to the applicant refusing to pay extortion money to S and also having witnessed a murder which he believed to be connected with the Commissioner.  The applicant also fears that he would be harmed or killed by relatives of the murder victim if he refuses to testify against the Commissioner after returning home.  The factual background was set out at paragraphs 15 and 16 of the Board’s decision.

5.  By notice of decision dated 16 January 2018, the Director assessed the applicant’s claim on all applicable grounds except torture risk and determined it against him.  Those applicable grounds are BOR 3 risk[3], persecution risk[4], and BOR 2 risk[5].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 3 October 2018, during which the applicant gave oral testimony and answered questions from the Board, with assistance from an interpreter.  The Board found that the applicant was not a credible witness, due to multiple material inconsistencies and implausible aspects in his evidence.  The Board raised a number of these concerns with the applicant during the Board hearing, however the Board was not persuaded by the applicant’s explanations. 

7.  Due to its adverse finding on the applicant’s credibility, the Board found that there was no real risk of harm in the event of refoulement.  The Board considered that it was unnecessary to make findings as to whether internal relocation was viable.

8.  Therefore, on 14 January 2019 the Board dismissed the applicant’s appeal on all the applicable grounds except torture risk.

Decision of the court below

9.  On 28 January 2019, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In his Form 86 and supporting affirmation, his stated grounds for judicial review were that the refusal of his non-refoulement claim was unreasonable because there was a failure to carefully consider it or to consider all matters raised in the claim, and a failure to give adequate reasons for the refusal.

10.  Following consideration of the application on papers only, on 4 April 2022 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [34] – [35] of the Form CALL-1 as follows:

“34. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration⁶.

35. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his case.  It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds.  The Court could not detect any error of law in the Decision.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The proposed judicial review has no realistic prospect of success.”

Appeal to this Court

11.  On 14 April 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.

12.  However, the applicant did not provide any particulars in support of his grounds of appeal.

13.  The Registrar of Civil Appeals directed on 18 May 2022 that the applicant must lodge his skeleton argument on appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers.

14.  The applicant has failed to lodge any skeleton argument as directed.  The hearing date is therefore vacated.  The applicant submitted a written submission dated 6 July 2022, which was long after the deadline imposed and only days before the original scheduled hearing date (11 July 2022).

15.  In the written submission the applicant recited general legal principles and quoted passages from case authorities without explaining how his case could be advanced by reference to these principles.  The applicant also complained, without giving specifics, about the Adjudicator acting unfairly and did not properly assess the credibility of the applicant. 

16.  This appeal is therefore disposed of on papers without a hearing.

Legal principles

17.  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’s decision, 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

18.  As the Court of Appeal will only examine the Judge’s decision in light of the grounds advanced by the applicant, and in the absence of any grounds that point to any error by the Judge, the appeal should be dismissed.

19.  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. 

20.  Whilst the applicant has made a general complaint against the Adjudicator’s findings, he has not raised any specifics pointing to any errors or concerns as regards the Board’s assessment of credibility.  There are no valid public law grounds for reversing or interfering with the Board’s decision to reject the claim. 

21.  Having considered the materials before us, we are of the view that the Judge was right to refuse leave.  There are no reasonably arguable grounds to challenge his decision.

22.  For these reasons, we are of the view that the appeal has no merits and accordingly this appeal is dismissed.

[1] [2022] HKCFI 965, HCAL 252/2019

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115)

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6] [2018] HKCA 524 at paragraph 14

[7] [2018] HKCA 714 at paragraph 13

[8] [2019] HKCA 50 at paragraph 11