RE AIOUB ALI

CACV 354/2019

[2019] HKCA 1329

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 354 OF 2019

(ON APPEAL FROM HCAL 2919/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 22 July 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of Bangladesh.  He departed Bangladesh for the mainland China on 16 May 2014.  According to him, he entered Hong Kong illegally on 18 May 2014.  He was arrested by the police on the same day.  He lodged his claim for non-refoulement protection on 24 May 2014.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the members of Awami League (“AL”) because of his political affiliation as he was a member of Chhatra Dal, the student wing of AL’s political rival, the Bangladesh Nationalist Party.  The brief facts of this case were summarized by the Judge in [4] of the Form CALL-1 ([2019] HKCFI 1804).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of the absolute and non-degorable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4]. By a notice of decision dated 20 October 2017[5], the Director determined the claim against the applicant.

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 August 2018, where the applicant elected to give evidence.  By a decision given on 10 December 2018, the Board dismissed the applicant’s appeal/petition.  In it, the Board found that the failure of the applicant to take the first opportunity to seek protection outside Hong Kong undermined his credibility[6].  It was further found that the evidence given by the applicant was inconsistent and contradictory[7]. In light of the relevant country of origin information (“COI”), the Board considered that state protection was reasonably available[8]. Internal relocation was also taken to be a viable option for the applicant[9]. Accordingly, the Board was not satisfied that the applicant would face a substantial risk of harm if refouled. 

The Judge’s decision

6.  By a Form 86 filed on 19 December 2018, the applicant sought leave to apply for judicial review against the Board’s decision.  An affirmation in support was also filed on the same day.

7.  In [10] of the Form CALL-1, the Judge categorized the matters stated in the Form 86 and the applicant’s supporting affirmation into five main grounds.  Briefly stated, grounds (1) – (4) related to the late delivery, the lack of translation, and the arrangement of the hearing bundle; and ground (5) criticized the Board regarding its handling of the COI materials. 

8.  The Judge held an oral hearing on 23 May 2019.

9.  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 the Form CALL-1 as follows:

“ 1. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer had explained to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

2. I explained the Board’s findings in paragraph 9 to him and asked if he had any comments. He said that he had no comments on them.

3. It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

4. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549 held that the finding of facts by the Adjudicator was final [42].

5. Grounds (1) to (4) fail as they are inconsistent with what the applicant said before this Court.

6. Ground (5) is his opinion without evidence in support of it. It fails.

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

The appeal

10.  On 1 August 2019, the applicant filed a notice of appeal against the Judge’s decision.  He stated in the notice that:

“ … [he] will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

11.  In compliance with the directions of the court, the applicant lodged his written submissions on 26 September 2019.  He referred to the cases of ST v Director of Immigration[10] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and R v Home Secretary, ex parte Doody [1994] 1 AC 531 for the proposition that high standards of fairness are required in determination of torture claims. 

12.  We heard the appeal on 25 November 2019.

General principles

13.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in 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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

(2)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced before, and rejected, by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)     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 the Court of Appeal 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 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 for non-refoulement protection in Hong Kong because of the adverse finding on his credibility.  It also found that state protection was available and internal relocation was a viable option. 

15.  We are slightly disturbed by [3] and [4] in the Judge’s reasons for refusing leave.  First, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549 did not hold that the finding of facts by the Board is final.  At [42] of that judgment, the Court was describing the statutory scheme with a view to explain how the second-tier decision of a Board would overtake the first-tier decision of the Director.  Thus, judicial review should focus on the decision of the Board and in the absence of exceptional circumstances it would not be appropriate to mount a judicial review against the decision of the Director after a decision of the Board has been given.

16.  Under Section 23(4) of Schedule 1A of the Immigration Ordinance, the decision of the Board is final.  Final means final in terms of administrative process.  However, such statutory provision does not exclude judicial review.  In a judicial review, the court will process the matter by examining if there is public law ground to warrant intervention as discussed in [13(1)] above. 

17.  Thus, the correct approach to a finding of fact or assessment of credibility by the Board in a judicial review is set out at [13(1)] above,

“ Assessment of evidence, COI materials, 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, procedural unfairness or irrationality in the decision of the Board.”

18.  Re: Moshsin Ali [2018] HKCA 549 is perfectly consistent with this approach.  At [47] to [51] in that judgment, the Court evaluated if there was valid ground for disturbing the Board’s decision.

19.  If the Judge proceeded on the basis that the findings of fact by the Board are not reviewable at all, that would be wrong in law.

20.  However, the Judge had to consider the application by reference to the grounds of challenge set out in the Form 86.  As we have seen, the grounds revolved around the hearing bundles and the hearing process.  The only substantive ground on the assessment by the Board was about COI being outdated.  

21.  Having considered the materials available before him, the Judge found that the applicant had failed to substantiate the COI ground with evidence.

22.  We agree with the Judge in that assessment.  The ground of appeal before us again related to the assessment of the COI.  But the applicant did not identify the alleged outdated COI and hearsay which had allegedly been wrongly relied upon by the Board.  The courts would not entertain a judicial review or an appeal based on general assertions of this kind without any particulars or evidence in support.

23.  Nor can we discern how the legal authorities cited by the applicant in his skeleton submission can avail him in this appeal.

24.  The applicant has failed to advance any effective argument that can justify a reversal of the Judge’s decision. 

25.  Having considered the materials available before us, we agree with the Judge that leave should not be granted to the applicant to apply for judicial review.

26.  For these reasons, we dismiss the appeal.