RE MD MOBARAK HOSSIN SHAMIM

CACV 362/2020

[2021] HKCA 594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 362 OF 2020

(ON APPEAL FROM HCAL 2041/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 15 June 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 7 September 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 2 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 7 August 2013 illegally and was arrested by the police on 10 August 2013.  He lodged a non-refoulement claim on 20 February 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 2 August 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 4 May 2018, the Board dismissed the appeal on 7 September 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  At [39] of the Board’s Decision, the Board found that the applicant was not telling the truth.  At [47] – [48] of the Board’s Decision, the Board considered the injuries suffered by the applicant and the fact that his family was able to lead a normal life after the threat from the opposing political party and held that the applicant was not at risk of sustaining serious harm or injuries upon his return.  The Board held that the applicant was not at risk from any of the proscribed harms.  The Board was also satisfied at [65] that internal relocation would be viable.

The judge’s decision

7.  The applicant filed a Form 86 on 26 September 2018 which contained the following grounds for judicial review, as summarized by the judge at [10] of CALL-1 Form:

(1)  misdirection in Law in that the Board misdirected himself on the law by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5)  irrationality in the Board’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(8)  procedural impropriety/unfairness in the Board applying the incorrect standard of proof in his decision; and

(9)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

8.  In his affirmation in support of the leave application dated 26 September 2018, the applicant advanced the following grounds for judicial review:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return; and

(3)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

9.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [11] to [18] of the CALL-1 Form:

“11.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

12.  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.

13.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14.  Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

15.  Essentially his claim was rejected by the Board on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 39 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, 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 with sufficient particulars and elaboration, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  Furthermore, the fact that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  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.”

Grounds for appeal

10.  On 30 June 2020, the applicant applied for leave to appeal out of time.  On 6 August 2020, the judge held that the applicant was not in fact late and that even if he were late, leave to appeal out of time should be granted.

11.  Pursuant to the order by the judge dated 6 August 2020, the applicant filed his Notice of Appeal dated 12 August 2020 where he stated as his ground of appeal:

“The [judge] refused my application for leave to appeal for judicial review.”

12.  In a sheet attached to the Notice of Appeal, the applicant stated that:

“The [Director and the Board] did not find any problem in my country of my life. I was to worry after those two decision come. I have big hope that the High Court will save me the High Court will grant my leave. But the High Court did not find any error of law, to save a life please accept my leave and let me alive.”

13.  In his skeleton submissions dated 25 March 2021, the applicant submitted that he applied for non-refoulement claim because his life will be harmed by his enemies who are politically well-connected.  He also contended that the judge did not want to listen to his claim and wrongly refused his application.

14.  The applicant agreed by a letter of 12 August 2020 that the appeal could be heard by two judges.  The appeal was fixed for hearing on 26 April 2021.  Notice of the hearing was given to the applicant by a letter dated 5 March 2021, which reminded him to comply with the directions earlier given, which he did by filing his skeleton submissions at the appropriate time.  However, the applicant did not appear on 26 April 2021, and attempts to contact him were unsuccessful.  In these circumstances, we proceeded to deal with this appeal on the basis of his Notice of Appeal and skeleton submissions.

Discussion

15.  Neither the ground of appeal stated in the Notice of Appeal, nor the matters stated in the additional sheet attached to the Notice of Appeal identifies any error on the part of the judge.  Nor do the matters mentioned in the written submissions do so.  There is therefore no viable ground of appeal which has been identified.  Further, having considered the judgment below, we can find nor error in it.    

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.