ISLAM MOHAMMAD NAZRUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 167/2020

[2020] HKCA 927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 167 OF 2020

(ON APPEAL FROM HCAL NO 2611 of 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 29 May 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 26 October 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 13 September 2017 rejecting his non-refoulement claim.

The applicant’s case

2.  The applicant is a national of Bangladesh.  He arrived in Hong Kong illegally on 23 July 2015 by boat via Guangzhou.  He was arrested soon after his arrival.  He lodged his non-refoulement claim with the Director on 25 July 2015. 

3.  The applicant’s claim is based on his fear of being harmed or killed by members of the Awami League (“AL”) as he was affiliated with the Bangladesh Nationalist Party (“BNP”).  He was accused of committing robbery by the local police in his home village and was informed by his family that both the police and AL people were looking for him.  He felt unsafe and decided to leave Bangladesh in about 2015.  His case was set out in detail in [10] of the Director’s decision and summarised by the Judge in [5] to [7] of the Form CALL-1[1].

4.  The applicant’s case, in brief, is that he joined as a member of the BNP in about February 2010 under the influence of his elder brother.  His neighbour Ruoff was a supporter of the AL and Ruoff’s cousin was a Sub-District Chairman of the AL.  Ruoff and his family disliked the applicant when they came to know that both the applicant and his brother were BNP members.  In about March 2013, Ruoff and his relatives threatened to kill the applicant.  The applicant reported the matter to the police but the police ignored his case and even demanded a bribe from him.  As Ruoff continued threatening to kill him, the applicant moved from his home village to Jiapur, Bangladesh.  During his stay in Jiapur, the applicant was informed by his friend that the police has issued an arrest warrant against him for robbery and Ruoff still has the intention to harm him.  Feeling unsafe in Bangladesh, he came to Hong Kong.

5.  By his decision dated 13 September 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

6.  The applicant’s appeal to the Board was heard on 7 August 2018.  By its decision dated 26 October 2018, the Board dismissed the appeal having regard to all the four applicable grounds.  Primarily, the Board found that there were many inconsistencies between the version the applicant has given on the papers and the evidence he gave at the hearing.  He was unable to provide particulars to his assertions which also damaged his credibility.  The Board did not accept there was any arrest warrant issued against the applicant and rejected his claims regarding the alleged death threats and attacks by Ruoff.  The Board found no real risk of the applicant experiencing any type of harm or ill-treatment as claimed that would entitle him to non-refoulement protection. 

Application for leave to start judicial review

7.  On 20 November 2018, the applicant filed a Form 86 to apply for leave to judicially review the decision of the Board.  The grounds put forward by the applicant were summarized by the Judge in [14] of the Form CALL-1 as follows:

(1)  The hearing bundle was in English and he did not have language assistance;

(2)  He did not have sufficient time to prepare for his appeal;

(3)  He was confused at the hearing; and

(4)  The Board relied upon materials which are not officially recognized, hearsay or outdated.

The Judge’s Decision

8.  After hearing the applicant on 12 July 2019, the Judge refused leave for the reasons set out in [15] – [21] of the Form CALL-1 :

“15. The applicant appeared before me. He confirmed that he was able to speak freely and tell his stories fully before the Adjudicator. He considered that he had had a fair hearing before the Board.

16. The Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA524 § 14 held that the primary decision makers are the Director and the Board and 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. It is quite clear that the Board had rejected the facts in support of his claim. There is no factual basis for his claim.

18. Lack of language assistance does not constitute a ground for his application as held by the Court of Appeal in Re Magar Surendra [2019] HKCA667, 13 June 2019. At paragraph 19, it said:

‘…The inability to understand the hearing bundle before the board as a result of lack of language or other assistance, even if true, is irrelevant.’

19. The applicant was unable to identify the material he complained. It is therefore only his bare assertion.

20. All the above grounds fail.

21. The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.”

Appeal to Court of Appeal

9.  By a Notice of Appeal filed on 11 June 2020, the applicant appealed the Judge’s order to this court.  He stated his grounds as follows:

(1)  He will face hardship if he is to return to his country;

(2)  The Board has relied on incredible source of news and information which is not officially recognised or is simply hearsay;

(3)  The Board has relied on cases which are outdated considering the dramatic changes; and

(4)  The lack of credible source of information has resulted in the Board making groundless speculations.

Skeleton Submissions

10.  The applicant filed a written submission on 12 October 2020 submitting that high standards of fairness are required for making a decision by the decision maker.  He cited various authorities including ST v Betty Kwan[6] and Secretary for Security v Sakthevel Prabakar[7], and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed. However, he did not provide any elaborations for his arguments which did not support his grounds of appeal.

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

12.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

13.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[8] and we will not repeat them here.

14.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal. Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[9]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[10] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

15.  We heard the appeal on 9 November 2020.  At the hearing, the applicant said he was not given the opportunity to have a screening interview because at that time he was detained in the Lai Chi Kok Detention Centre.  He has mental problems and he needs to attend treatment at Tuen Mun Hospital.  He said he did not articulate his case properly because of his mental problems.  The applicant added that since he left his country his opponents have been targeting his family members.  His brother was assaulted by his opponents and they broke his leg. 

Discussion

16.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

17.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

18.  Regarding what was said by the applicant at the hearing, we are of the view that it does not advance the applicant’s appeal. If there are changes in the circumstances or new information that are material to his case for non-refoulement, the applicant may consider providing the information or new evidence to the Director, who is the primary decision maker, pursuant to section 37ZO(2) of the Immigration Ordinance.  As to his allegation that he did not articulate his case properly because of his mental problems, the applicant has confirmed before the Judge that he was able to speak freely and tell his stories fully and he considered that he had had a fair hearing before the Board.

19.  As we have pointed out, this Court’s focus in this appeal is the correctness of the Judge’s decision in the light of the materials that were before him.  What the applicant said in oral submission does not go to show that the Judge had erred in his decision.

20.  In any event, we have reviewed both the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision. 

21.  For the above reasons, we are of the view that the appeal has no merit.  Accordingly, we dismiss the appeal.