DHALI JONY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 104/2019

[2019] HKCA 755

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 104 OF 2019

(ON APPEAL FROM HCAL NO 342 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) dated 21 February 2019.  By that decision, the Judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Bangladesh.  Having arrived in Mainland China on 27 December 2012 he sneaked into Hong Kong on 22 June 2013.  He was arrested by the police on 23 June 2013.  He lodged a torture claim by written representation on 26 June 2013 and completed a non-refoulement claim form on 20 July 2015.  His claim was made on the basis that if he were to return to Bangladesh he would be harmed or killed by his neighbour’s family because he had injured one of their members.

3.  According to the applicant, members of his neighbour’s family seemed to hold high-ranking positions in the political party, Awami League (“AL”) whereas the applicant’s father is a supporter of the rival political party, Jamaat-e-Islami.  The two families often had arguments due to their political difference.  In February 2012, a member of the neighbour’s family called Latif quarrelled with the applicant’s father.  The applicant hit Latif’s head with a wooden plank.  Latif was admitted to the hospital in critical condition.

The Director’s decision

4.  By a Notice of Decision dated 10 November 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].  The Director did not accept that the applicant faced any of the above risks.  He also considered that reasonable state protection and internal relocation alternatives were available.

5.  By a Notice of Further Decision dated 12 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[4].   On the existing material which the applicant did not supplement upon invitation the Director did not accept that the applicant faced any BOR 2 risk.

The Board’s decision

6.  The applicant appealed to the Board against the Director’s decisions.   The appeal was scheduled to be heard on 14 December 2017 but the applicant did not turn up.

7.  The notice of hearing had been sent to the applicant’s last reported address.  The staff of the Board made several attempts to reach the applicant by phone but to no avail.  The Board also notified the applicant by mail of the situation but received no response from him.  The adjudicator then determined the appeal on the available information.

8.  The adjudicator found there was much hearsay in the applicant’s claim and that his allegation was not supported by credible evidence.  The adjudicator considered that the applicant failed to establish any torture risk, persecution risk, BOR2 risk or BOR3 risk.  His appeal was rejected on 7 February 2018.

The intended judicial review

9.  The applicant filed a Form 86 and an affirmation on 5 March 2018 to seek leave to apply for judicial review against the decision of the Board on the grounds that the adjudicator had misdirected himself on the law, acted in a procedurally unfair manner, rendered unreasonable or irrational decisions and failed to meet the greater care and duty owed to a self-represented claimant.  He also accused the Director of deciding on BOR2 risk without screening.

The Judge’s decision

10.  The Judge heard the appeal on 30 July 2018.  The Judge decided that the adjudicator had proper basis for his decision and made no errors of law and there was no procedural unfairness.  His reasons which specifically met the applicant’s complaints were as follows:

(1)   The Director had screened the applicant’s claim with respect to BOR2 risk and had given the applicant time to provide additional facts but the applicant failed to do so;

(2)   After careful consideration of the information adduced by the applicant and the Director, the Judge found that the applicant was duly notified of the scheduled Board hearing, the notice of which was posted to the applicant’s last reported address;

(3)   The applicant had been legally represented by the Duty Lawyer Service up to the Director’s decision dated 10 November 2015 and he failed to show his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process;

(4)   The applicant failed to specify the alleged failures of the assigned duty lawyer;

(5)   The adjudicator did not consider the issues of state protection and state acquiescence nor was it necessary to call other reports because he found the applicant to have failed to establish any torture risk, persecution risk, BOR2 risk or BOR3 risk;

(6)   There was no evidence the adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay;

(7)   There was also no evidence the adjudicator misdirected himself in law or applied the wrong standard of proof.

11.  The Judge decided that the applicant had no realistic prospect of success in the intended judicial review and refused the leave application on 21 February 2019 accordingly.

Grounds of Appeal

12.  The applicant filed a Notice of Appeal against the decision of the Judge on 4 March 2019.

13.  The applicant’s stated ground of appeal in his Notice of Appeal was: “My problem in Bangladesh not finish”.

14.  In his written submissions, the applicant stressed that if he were to return to Bangladesh, AL members would kill him.  He reiterated some of the information regarding the political situation in Bangladesh and criticized the Hong Kong immigration for not doing their job “perfectly”.

15.  Before us, the applicant repeated that he had not received the notice notifying him of the Board hearing.

Legal Principles

16.  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 Country of Origin Information (“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.

17.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the Judge and would only reverse that decision if it can be demonstrated that the Judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  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.

Merits

19.  In the present application, the applicant’s main ground of appeal is that if he were to return to Bangladesh, he would be killed by AL members.

20.  However, 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 applicant has failed to show that there were errors of law or procedural unfairness or irrationality in the decision of the Board. 

21.  The applicant also complained that the Hong Kong Immigration Department had not done their job perfectly.  But he failed to provide any particulars for this complaint.  In any event, within the relevant administrative structure, the decision of the immigration officer is not a decision that is susceptible to judicial review once an appeal to the Board is pursued by a claimant[5].

Disposition

22.  As there is no merit in the appeal nor any prospect of success in the intended application for judicial review, we dismiss the applicant’s appeal.