ISLAM MOHAMMAD HAIZUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 103 /2019

[2019] HKCA 727

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 103 OF 2019

(ON APPEAL FROM HCAL NO 1121 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.  This is the applicant’s appeal against the decision of Deputy High Court Judge K W Lung on 22 February 2019. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Bangladesh who left his home country for China on 18 March 2015.  He entered Hong Kong illegally on 15 May 2015 and was arrested by the police on 18 May 2015.  He lodged a non-refoulement claim on 20 May 2015 on the basis that he would be ill‑treated or even killed by members of the Awami League (“AL”), the ruling party in Bangladesh, owing to his involvement and membership in the Jamaat-e-Islami and that AL has filed two false cases against him.  

The Director’s decision

3.  By a Notice of Decision dated 8 December 2017, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.  The Director considered that there are no substantial grounds to substantiate his claim and that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk of harm.  The Director further assessed that the problem between the applicant and the AL people was solely a private dispute and there is no information suggesting that the government was involved.  Thus, the non‑refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant’s appeal against the Director’s decision was heard by the Board on 14 March 2018.  After detailed analysis of the available information and thorough assessment of the applicant’s evidence, the Board found that the applicant had fabricated his claim.  Therefore, the appeal was rejected on 4 June 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation in support on 19 June 2018 to seek leave to apply for judicial review against the decision of the Board.  The major part of his affirmation is about his own background and some procedural history of his claim.  In the last part of the affirmation, he briefly stated that “AL worker” wanted to kill him because of his work and “AL worker” killed his friend.  He also contended that this is a travesty of justice and contrary to natural law and spirit of common law humanity and brotherhood to refuse his claims and evict him out of Hong Kong.

The judge’s decision

7.  The judge decided that the applicant has no factual basis in support of his claim and has no substantiated grounds in support of his judicial review.  The judge considered that the applicant has no reasonable prospect of success in the intended judicial review and rejected the leave application on 22 February 2019 accordingly.

The grounds of appeal

8.  The applicant filed a Notice of Appeal against the decision of the judge on 4 March 2019. The ground of appeal as stated in the Notice of Appeal is as follows:

“My problem in Bangladesh not finish”

9.  In his written submissions dated 26 April 2019, he repeated the background of his claim and asserted that he cannot understand why the officer cancelled his claim, his claim is not fake and he is sure if he were to return during AL government he would be killed by AL members or the police.

Legal principles

10.  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.

11.  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 and Country of Origin Information (“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.

12.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments that had been advanced before 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.

13.  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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis

14.  The applicant has not 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.  He failed to raise any viable grounds of appeal to reverse the judge’s decision.

15.  In any event, after reviewing both the decisions of the Board and the judge, there is no discernable error of law, mistake of fact, or procedural impropriety in their respective decisions. 

Disposition

16.  We dismiss the appeal as there is no merit in the appeal and no prospect of success in the intended application for judicial review.