KAMAL HOSSAIN v. TORTURE CLAIMS APPEAL BOARD

CACV 310/2021

[2021] HKCA 1413

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 310 OF 2021

(ON APPEAL FROM HCAL NO 1351 OF 2018)

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JUDGMENT

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Hon Chow JA (giving the judgment of the Court):

BACKGROUND

1.  By notice of appeal dated 15 June 2021, the applicant appeals against the decision of Deputy High Court Judge Bruno Chan (the “Deputy Judge”) given on 7 June 2021 (the “Deputy Judge’s decision”).[1]

2.  The Deputy Judge dismissed the applicant’s application for leave to apply for judicial review of the Torture Claims Appeal Board’s decision dated 9 July 2018 (the “Board’s decision”).  The Board’s decision affirmed the decisions of the Director of Immigration refusing the applicant’s claim for non-refoulement in his Notice of Decision dated 20 October 2015 and Notice of Further Decision dated 13 December 2016 (the “Director’s 1^st and 2^nd decisions” or the “Director’s decisions”).

3.  The applicant has consented to this appeal being disposed of on paper.

4.  The applicant lodged written submissions in support of this appeal on 25 June 2021.

THE APPLICANT’S NON-REFOULEMENT CLAIM

5.  The applicant is a national of Bangladesh.  His claim is summarised by the Deputy Judge at [1] to [4] of the CALL-1 form.  In short, he claims that if returned to Bangladesh, he would be harmed or killed by his former customers for failing to repay their deposits as a result of the failure of his travel agency business.

THE DIRECTOR’S DECISIONS

6.  The Director, in his 1^st and 2^nd decisions, rejected the applicant’s non-refoulement claim on all applicable grounds, including torture risk[2], BOR 2 risk,[3] BOR 3 risk[4], and persecution risk[5].[6]

THE BOARD’S DECISION

7.  The applicant appealed the Director’s decisions to the Board.

8.  The Board rejected his appeal on 9 July 2018.  The Board doubted the credibility of the applicant’s claim in light of inconsistent testimony.  The Board found, in any event, that his alleged problems with his former customers, if true, were private monetary disputes without any official involvement.  Hence, state/police protection would be available to him upon his return to Bangladesh.  Further, there were reasonable internal relocation options for him to move safely to other areas away from his home district without any risk of being located.  Consequently, his claim for non-refoulement protection failed on all applicable grounds.[7]

THE INTENDED JUDICIAL REVIEW

9.  The applicant filed his Form 86, together with a supporting affirmation, for leave to apply for judicial review on 11 July 2018.

10.  The Deputy Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review.  Leave to apply for judicial review was refused.[8]  The Deputy Judge’s reasons were set out at [10] to [17] of the Form CALL-1 as follows:[9]

“10. On 11 July 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or supporting affirmation of the same date, but in his subsequent skeleton submissions dated 5 October 2020, he put forward the following grounds for his intended challenge:

(1) that the Adjudicator was unreasonable in making speculative findings with regard to the assessment of risk;

(2) that the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor; and

(3) that the Adjudicator made mistake of fact and/or failed to take a relevant factor that the Applicant’s risk of harm emanates from his political opinion generally.

11. However, a careful examination of skeleton submission reveals that many of the facts and matters cited or referred therein appear to be wholly irrelevant or different from the stated facts of the Applicant’s claim even based on his own case, such as the followings:

(a) Para 9: ‘With regard to the ‘1^st incident’ whereby me and my friends were attacked by a number of AL members … That my group could manage to escape while being outnumbered shows the AL had no intention to kill or harm seriously to me, especially when one of the attackers was armed with a pistol and had it drawn out to shoot …’

(b) Para 27: ‘In particular, despite I clearly indicating that he feared persecution due to his political views and opinions …’

(c) Para 30: ‘However, I was fear of harm emanates from my membership of the JATIYO PARTY and the risk of harm at the hands of AL members with the confrontation on Election Day merely being a triggering event.’

(d) Para 31: ‘… The Adjudicator asked myself the wrong question in the assessment of risk and failed properly assess the risk of harm from the AL as an opposing political party in the context of political violence in Bangladesh.’

(e) Para 32: ‘The Adjudicator’s failure to properly set out and assess the feared harm arising from my political opinion in Support of Jatiyo party generally was a failure to address a Central and material issue in my Appeal/petition.’

12. Even on his own case at the highest, the Applicant’s claim was premised only on threats from his former customers over money owed to them as a result of his failed travel agency business, which has nothing to do with any political issues of his with any political party in Bangladesh. It seems to be a case of the Applicant just coping those submissions from the case of some other asylum seeker from Bangladesh but based on an entirely different set of facts that none of the arguments in the skeleton submissions are relevant or applicable to the Applicant’s case.

13. Nevertheless, if one were still to apply those 3 proposed grounds to the Applicant’s case, in the absence of any further details or particulars or elaborations from the Applicant, none of them are in my view reasonably arguable, as they are simply factually incorrect in particularly with the latter two grounds for the reasons already given above, and that as evidenced in paragraphs 59 – 64 of the Board’s decision, the Adjudicator clearly did take into consideration a number of COI materials in the assessment of the options of state protection and internal relocation available to the Applicant rather than just one source of COI as asserted by the Applicant in paragraph 25 of his skeleton submissions.

14. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant who also failed to attend the scheduled hearing of his application without any explanation, I do not find any reasonably arguable basis for his intended challenge.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other parts of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.     In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

THIS APPEAL

11.  In his notice of appeal dated 15 June 2021, the applicant states that the Deputy Judge wrongly exercised his discretion in refusing leave to apply for judicial review.  He contends that the Board erred in finding him not to be a credible witness.  Additionally, he argues that the hearing before the Board was procedurally unfair as (i) the documents were not translated to him prior to his attendance at the oral hearing before the Board, and (ii) there was miscommunication arising from the use of an interpreter (the “language assistance ground”).

12.  In his written submissions, the applicant focuses on the Board’s failure to properly weigh the evidence, and its failure to properly consider relevant and up-to-date country of origin information (the “factual assessment ground”).

LEGAL PRINCIPLES

13.  It is not open to an applicant to advance new grounds of judicial review in this appeal which were not raised in the Form 86.

14.  In assessing the merit of the intended appeal, the court adopts the legal principles comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the judge’s decision in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review.

OUR VIEW

16.  In light of the above principles, we are of the view that there is no merit in this appeal.

17.  Dealing firstly with the language assistance ground, this is a new ground of judicial review which was not raised in the Form 86 or before the Deputy Judge.  It is therefore not open to the applicant to take this point now.  Further, it is based on the applicant’s bare allegations without particulars.  The Applicant has wholly failed to identify any relevant miscommunication occurring at the hearing before the Board.  There is no basis to believe that the Applicant’s grounds of appeal against the Director’s decisions were not properly presented, or understood, at the hearing of the appeal before the Board.

18.  The factual assessment ground is also without merit.  This Court has held, on numerous occasions, that an appeal to the Court of Appeal is not an occasion to re-examine the Board’s decision afresh.  Determination of the merits of the non-refoulement claim is a matter for the Board, not the court.

19.  The Applicant has failed to identify any error in the Deputy Judge’s decision, or raised any viable ground of appeal against the Deputy Judge’s decision.

20.  Accordingly, the Applicant’s appeal is dismissed.

[1] [2021] HKCFI 1631 (Form CALL-1).

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[5] 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.

[6] [2021] HKCFI 1631 at [5] and [7].

[7] Ibid at [9].

[8] Ibid at [18].

[9] Ibid.