RE AL AMIN SHAK MOHAMMAD

CACV 228/2021

[2021] HKCA 1488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 228 OF 2021

(ON APPEAL FROM HCAL NO 303 OF 2020)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 26 April 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Director of Immigration (“Director”) dated 20 February 2020 rejecting the applicant’s request to make a subsequent non‑refoulement claim.

Background

2.  The applicant is a Bangladeshi national.  He claims to have entered Hong Kong illegally on 14 February 2016.  He was arrested by the police on the same date for illegally remaining in Hong Kong, and was referred to the Immigration Department on 22 February 2016.  The applicant lodged a non‑refoulement claim on 14 March 2016.

3.  That claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members of the Awami League because of his participation in the Bangladesh Nationalist Party (“BNP”).

4.  By notice of decision dated 27 January 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]

5.  The applicant appealed to the Torture Claims Appeal Board (“Board”) against the Director’s decision.  The Board rejected the appeal on 6 September 2017. 

6.  The applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  On 3 July 2018, Deputy High Court Judge Woodcock refused leave to apply for judicial review.[6]  The applicant’s appeal against that refusal was dismissed by the Court of Appeal on 26 October 2018.[7]  Leave to appeal further to the Court of Final Appeal was refused on 14 December 2018.[8]

7.  By letter dated 11 November 2019, the applicant wrote to the Director, requesting to make a subsequent non‑refoulement claim.  On 16 January 2020, the applicant submitted a written representation.  He was interviewed by the Immigration Department on 23 January 2020.  By notice of decision dated 20 February 2020, the Director refused the request to make a subsequent non‑refoulement claim.  In doing so, the Director considered the following findings made by him or the Board in relation to the applicant’s previous claim:

(a)  the alleged ill‑treatment from the Awami League members was of low intensity and low frequency;

(b)  the Board found that the applicant was never a BNP member, and did not accept that he attended or organized rallies or protests by BNP against the Awami League or did other things which might lead to him being imputed with a pro‑BNP political profile;

(c)  there was no indication that the state was involved in, indifferent to or encouraged threats from the Awami League, and the Director took the view that the applicant had adduced no evidence that he ever encountered any harm or threats from the Bangladesh police or other authorities for any reason;

(d)  the applicant’s evidence in relation to attendance at and organization of BNP rallies was manufactured, and he did not attend the blockade because he was not a BNP member;

(e)  the applicant’s failure to seek protection in India, and his return to Bangladesh significantly undermined his credibility to be in fear for his life or of other harm.

8.  The Director also considered information from the applicant as to two claimed incidents of attack on his father in Bangladesh by the Awami League in August and November 2019.  The Director considered that those incidents related to the applicant’s claimed political affiliation and previous conflicts with Awami League members, which had already been put forward and duly considered in the applicant’s previous claim.  The Director concluded that there had been no change of circumstances to warrant the making of a subsequent claim.

Decision of the court below

9.  On 4 March 2020, the applicant sought leave from the Court of First Instance to apply for judicial review against the Director’s decision dated 20 February 2020.  In his supporting affirmation, the applicant stated a number of grounds for judicial review, which the Judge summarized at [14] of the Form CALL‑1. 

10.  Following consideration of documents only, on 26 April 2021 the Judge refused to grant leave to apply for judicial review.  The reasons were set out at [14]‑[19] of the Form CALL‑1 as follows:

“ 14. In support of his application for leave for judicial review of the Director’s Decision, he put forward the following reasons in his affirmation:

(1) He is a genuine non‑refoulement claimant as he faces all the dangerous problems, harassment and torture in his country. He is unable to find any place to stay safely in his country.

(2) The Director has made a wrong decision without proper inquiry his situation and he invites the Director to go to his country to see for himself.

(3) He had to run away or he would be killed by his enemies.

15. The Court will bear in mind that the Director’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13.… …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 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. Those grounds in paragraph 14 do not assist him. Those are his opinions without specifics in support of them. It is not necessary for the Director to go to his country to make inquiry into his situation as the Director may rely upon the country of origin information before making his decision, which he did.

18. The Court does not find any error of law or procedural unfairness in the Director’s Decision. The findings of the Director are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19. There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.”

Appeal to this Court

11.  On 7 May 2021, 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.  The applicant lodged written submissions for his appeal on 13 August 2021.  Those submissions consist mostly of general statements of law quoted from case law without identifying how they relate to or apply in this case. 

13.  At paragraph 2(1) of his submissions, the applicant stated that the Board erred in approaching the matter by simply trying to see whether it could find fault with the Director’s decision.  The applicant argued that the Board failed to scrutinize the Director’s decision and that it is a general practice of the Board to not question or find fault with the Director’s decision.  At paragraph 2(2) of his submissions, the applicant argued that the Board should have but did not consider country conditions.

14.  However, the applicant did not provide any details or particulars in support of his grounds of appeal or as to any specific errors made by the Director or the Judge.

15.  At the hearing of the appeal the applicant stated that he had nothing to add to the written materials.

Legal principles

16.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 issue at hand, the Court should not usurp the role of the Board.  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 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision 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 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, 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

17.  Subsequent non‑refoulement claims are regulated by section 37ZO of the Immigration Ordinance (Cap 115), which provides:

“ 37ZO. Limitation on subsequent claim

(1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that—

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

…”

18.  The Director decided that the matters relied upon by the applicant for making another claim did not constitute any significant change of circumstances since the determination of his previous claim.  The Judge held that there was no ground for judicial review of the Director’s decision.

19.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or as to any specific errors in the Judge’s decision. General assertions without particulars are not effective grounds to support an application for judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

20.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no grounds that point to any error made by the Judge, the appeal should be dismissed.

21.  Further, the applicant’s grounds of appeal and written submissions are not on point, as they are directed toward the Board’s decision, instead of the Director’s decision dated 20 February 2020 which was the subject of the intended judicial review and of the Judge’s decision under appeal.

22.  In the present case, the Director refused the applicant’s request to make a subsequent claim for non‑refoulement protection on the basis that that there had been no significant change of circumstances to permit a subsequent claim, in light of the information provided by the applicant with his request and the decisions of the Director and the Board in relation to the applicant’s previous claim.  Such finding is within the province of the Director, and the court will not interfere with that assessment unless it is vitiated on public law grounds.  In this case, there are no such grounds established.

23.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that he was right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

24.  For these reasons, this appeal is dismissed.

[1]  [2021] HKCFI 1099, HCAL 303/2020.

[2]  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).

[3]  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.

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

[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] HKCFI 1408; HCAL 639/2017.

[7]  CACV 311/2018 ([2018] HKCA 740).

[8]  [2018] HKCA 968.