SHAHIN, alias SHAHIN SEKH, alias KHAN SUJAN, alias WASHIM, alias SHAK SHAHIN v. DIRECTOR OF IMMIGRATION

CACV 12/2022

[2022] HKCA 769

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 12 OF 2022

(ON APPEAL FROM HCAL NO 1375 OF 2018)

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J U D G M E N T

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

1.  On 31 December 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek judicial review against the decision of the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the judge’s decision on 6 January 2022. He has consented to the appeal being dealt with on the papers without an oral hearing.

2.  The applicant is a national of Bangladesh. He is 46 years old. He had previously lodged a torture claim on 20 August 2007 and it was withdrawn by him in writing on 9 July 2010. On 19 January 2011, the applicant sought to re-open his claim and was permitted to do so by the Director on 24 March 2011. He then withdrew his application on 29 June 2011 claiming that his problems had been solved back home. He was subsequently deported to Bangladesh on 28 November 2011.

3.  On 26 July 2017, the applicant entered Hong Kong illegally again and was arrested by the police on the same day. Subsequently, he was convicted of immigration offences on 25 August 2017. On 26 February 2018, the applicant wrote to the Director applying for non-refoulement claim on the basis that he would be harmed or killed by the creditors of a company called “RDP” set up by members of the Bangladesh Nationalist Party (“BNP”). The applicant had joined the BNP and taken up a responsible position in RDP. The company took deposits from clients who were from the Awami League. The partners in RDP ran away with the money of the clients of the company. The creditors from the Awami League threatened to kill the applicant and hence he fled Bangladesh.

The Director’s decision

4.  The Director took into consideration the previous claim made by the applicant in 2007, in which he alleged that the threat of harm made to him was from the BNP. During the interview conducted with the applicant in 2018, his enemies were changed to members of the Awami League who had placed deposits with RDP.

5.  Further, despite his claim that he joined the BNP as a general member in 2012, the applicant did not know the full name of BNP but only knew the party was called BNP. Nor did he know the full name of RDP.

6.  The Director considered the subsequent claim of the applicant in 2018 in accordance with section 37ZO (1) and (2) of the Immigration Ordinance (Cap 115). The statutory requirements are as follows:

“(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.”

7.  The Director was of the view that even accepting there was a change of circumstances of the applicant since his previous claim in 2007 was withdrawn, the changes, when taken together with the material previously submitted in support of his previous claim, would not give his subsequent claim a realistic prospect of success, and therefore decided that he may not make a subsequent claim as the statutory requirements are not met.

8.  The Director found there was no indication of the applicant’s claimed risk of harm being motivated by political elements. There was also no evidence that the money depositors would torture or kill him. This is supported by the depositors’ action to file a complaint with the police, therefore seeking resolution of their dispute via legal process. In any event, there was no evidence to show that the Bangladesh government was involved in the incidents and relocation at other places within the country was not unreasonable, as evidenced by his hiding in various places without being harmed. Therefore, the Director refused the applicant’s request to make a subsequent claim on 6 April 2018.

9.  Pursuant to section 37ZR of the Immigration Ordinance, the Torture Claims Appeal Board (“the Board”) has no power to hear any appeal from the Director’s decision in respect of subsequent claims.

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 19 June 2018 to seek leave to apply for judicial review against the decision of the Board. DHCJ Lung treated the application as an intended judicial review against the decision of the Director as there was no decision made by the Board.

11.  The applicant did not put forward specific grounds for his intended judicial review. He only stated in his supporting affirmation that he was not educated and was not provided with a lawyer to represent him at the interview. He also stated that the Director made his decision on assumptions instead of evidence, which the applicant could not produce as he was detained in the detention centre.

The judge’s decision

12.  DHCJ Lung considered the leave application on paper as the applicant did not request for an oral hearing. The judge held there was no error of law or procedural unfairness in the Director’s decision and the findings of the Director are not Wednesbury unreasonable or irrational in any respect. The judge therefore dismissed the leave application on 31 December 2021.

Grounds of appeal

13.  The applicant did not provide any grounds of appeal in his Notice of Appeal. He only stated that he wanted to challenge the decision of the court and he would show some errors.

14.  As for the applicant’s written submissions, he alleged that he is in fear of his life from his enemy in Bangladesh.

Legal principles

15.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

16.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

17.  The applicant’s complaints against the Director are bare allegations. In any event, the applicant failed to adduce any detail in support of his complaints. 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 Director, which the applicant failed to demonstrate.

18.  The applicant also has not put forward any reasonably arguable grounds of appeal against the judge’s decision in refusing to grant leave for him to bring judicial review. He has failed to demonstrate that the judge was wrong in refusing to grant leave to bring judicial review.

19.  For all the above reasons, the appeal is devoid of merit. We therefore dismiss this appeal.