RE HOSSAIN MOHAMMED ISMAIL

CACV 208/2020

[2021] HKCA 573

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 208 OF 2020

(ON APPEAL FROM HCAL NO. 1744 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 10 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 22 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 14 August 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  On 20 August 2013, the applicant attempted to depart Hong Kong via Lo Wu Control point, but was arrested on suspicion of having entered Hong Kong illegally.  He lodged a non-refoulement claim on 28 September 2013. 

3.  The applicant’s claim was based on threats from his relatives arising out of a land dispute.  The details of the applicant’s claim have been summarised by the judge at [3] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 14 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 the hearings on 27 March 2018, 11 April 2018 and 23 April 2018, the Board dismissed the appeal on 22 August 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

6.  The Board found that there was no real risk that the applicant will suffer any of the proscribed harms upon his return.  The Board was also satisfied at [216] that state protection would be available for the applicant and at [263] that internal relocation would be viable.

The Judge’s decision

7.  The applicant filed a Form 86 on 27 August 2018 which contained no ground for seeking relief.

8.  In his affirmation in support of the leave application dated 27 August 2018, the applicant deposed that he was not satisfied with the Board’s Decision.  He claimed that he could not go back to Bangladesh and asked the court to consider his future and the danger to his life.

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 at [13] to [22] of the CALL-1 Form:

“13. The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Board. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the Board’s Decision.

14. I put the Board’s findings to him and asked him if he had any comments. He said that he had no comments.

15. I agree that the Board’s Decision may not be clear to the applicant. On the one hand, it said that it accepted the main facts as claimed by the applicant. On the other hand, it said that there were serious credibility problems such that the Adjudicator was unwilling to attach any credence regarding his narrative. It is unclear what the Adjudicator meant by “his narrative”. Having gone through the reasons, I can understand that “his narrative” dose not refer to the main facts because the Adjudicator had accepted them. These facts constitute the claims in support of the applicant’s case. It therefore refers to other minor facts of the applicant’s case. In his subsequent analysis of the case, the Adjudicator seemed to base upon his acceptance of the main facts in support of the applicant’s case.

16. Because of the ambiguity, I had considered the Director’s Decision as well. I find that the Director’s findings are more or less the same as the Board’s findings, save that the Board had gone into other minor details, which the Director did not consider to be relevant for his consideration of the applicant’s claim.

17. The Board’s Decision would be clearer if it adopted the Director’s finding of the facts, which I shall further elaborate in my observations at the end of this Decision, I do not find the Board’s Decision unreasonable, irrational or procedurally irregular.

18. The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

19. The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018 at §42 held that the Board’s Decision is final, subject to judicial review. However, there is no evidence to show that the Board was unfair or unreasonable that requires the Court’s intervention.

20. I have taken into account of the observations below. They do not affect my conclusion.

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

CONCLUSION

22.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

10.  In the Notice of Appeal dated 22 June 2020 and the affirmation filed in support of the same day, the applicant contended that:

“1. [the judge] was wrong in law in holding that there was no state acquiescence or involvement.

2. [the judge] failed to provide detailed reason in support of this decision.”

11.  In his written submissions dated 5 August 2020, the applicant submitted that:

(1)  the Board failed to assess the credibility of the applicant; and

(2)  the Board’s decision was Wednesbury unreasonable.

12.  By a letter dated 22 June 2020, the applicant consented to the appeal being disposed of on paper without an oral hearing.

Discussion

13.  In the court below, the applicant did not identify any public law error in the Board’s Decision.  His only ground for judicial review was that it would be dangerous for him to return to Bangladesh.  The applicant now sought to advance two new grounds in the written submissions which were never raised in the Form 86.  We do not see any reasons for allowing the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 524, CAMP 54/2018 at §14(4)). In any event, those grounds are directed towards the Board’s Decision and not the decision by the judge and they are therefore bound to fail.

14.  The judge dismissed the application for leave for judicial review on the ground that the applicant has failed to identify any public law error.  The ground related to state acquiescence or involvement was never raised before the judge and the judge was therefore not required to deal with it.  Having considered the decision by the judge in detail, we are of the view that the judge has given sufficient reasons for his decision.

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