RE BISWAS SHONKOR KUMAR

CACV 327/2019

[2019] HKCA 1353

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 327 OF 2019

(ON APPEAL FROM HCAL NO. 831 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicant to apply for judicial review against the decisions of the Director of Immigration and the Torture Claims Appeal Board.

1.2  The applicant failed to comply with the directions of the Registrar of Civil Appeals of 5 August 2019 and did not file his skeleton submissions within the time specified.  As a result, the hearing fixed for 12 November 2019 has been vacated.  We will deal with the appeal on paper.

2)  Background

2.1  The applicant is a national of Bangladesh.  He entered Hong Kong illegally in October 2015.  He was referred to the Immigration Department and he subsequently raised a non-refoulement claim on the basis that he would be harmed or killed by members of the Awami League.

2.2  The details of the applicant’s claim have been summarized by the Judge at [2] to [5] of the CALL‑1 Form.

3.  The Director’s Decision

3.  The Director of Immigration decided against the applicant’s claim on 21 June 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s decision to the Board on 4 July 2017. After a hearing held on 28 November 2017, the Board dismissed the applicant’s appeal against the Director’s decision on 30 April 2018.

4.2  The Board rejected the applicant’s case based on a lack of grounds under all four heads of risk: torture risk, persecution risk, BOR 2 and BOR 3 risk.  The Board found there was no political involvement in the Awami League trying to extort money from the applicant or his family.  It also found that even if there was, internal relocation was possible.

5)  Decision of the Judge

5.1  The applicant complained before the Judge that :

(1)  It was procedurally unfair for the Board to adopt a structured approach to assess his credibility;

(2)  Failure to adopt a reasoned approach in assessing credibility;

(3)  Failure to adopt a high standard of fairness;

(4)  The Director and the Board relied on source of information not officially recognized;

(5)  Failure of the Board to take into account that the applicant had very little English skills.

5.2  The Judge held that the applicant’s complaints are all vague and broad containing several key words and phrases without particulars or specifics on how they applied to the applicant’s case or how the Director or the Board had erred in their decisions.  The arguments were not reasonably arguable.   

6)  Grounds of appeal

6.  It is difficult to comprehend the handwritten grounds of appeal of the applicant.  Doing the best we can, the applicant stated in his notice of appeal the following grounds :

(1)  The Judge did not explain why he considered the applicant’s problems were not serious.

(2)  The Judge failed to explain the reason why he refused to grant the applicant leave for judicial review.

(3)  The Judge did not address the applicant’s complaints about poor interpreter service and duty lawyer service.

7)  Our view

7.1  We will repeat the approach of this Court in dealing with cases of this nature :

(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 the 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 their decisions.

(2)  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 the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would 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 otherwise plainly wrong.

(3)  In an appeal against a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2  In our view there are no merits in the applicant’s appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3  It is not for the Judge to show that the applicant’s problems are light or serious.  The burden of proof falls squarely on the applicant to make his case of non‑refoulement: AM v Director of Immigration [2014] 1 HKC 416 at 427.

7.4  The Judge did not fail to give reasons for refusing the applicant’s application for leave for judicial review.  On the contrary, it is the applicant who has failed to show that the Judge had erred.  There is no merit in this argument.

7.5  It is the applicant’s bare allegation unsupported by any evidence as to how the Judge had failed to deal with his complaints on lack of interpreter service or lack of legal representation.  Again, we agree with the Judge that these allegations are so broad, so vague and so lacking in particulars that it is impossible for the Court to have any reasonable assessment of these complaints.   

7.6  We see no error in the Judge’s decision. Accordingly the appeal is dismissed.