RE AHAMMED RONY

CACV 201/2020

[2020] HKCA 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 201 OF 2020

(ON APPEAL FROM HCAL NO. 1528 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 decision of the Torture Claims Appeal Board (‘the Board’) on 8 June 2020.

1.2.  This appeal was scheduled to be heard on 16 November 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 11 August 2020, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1.  The applicant is a national of Bangladesh. He entered Hong Kong legally as a visitor and overstayed. He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by certain local supporters of rival political parties

2.2.  The details of the applicant’s claim have been summarized by the Judge at [2] to [8] of the CALL‑1 Form.

3)  The Director’s Decision  

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 6 January 2017.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘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.  After a hearing held on 23 April 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 20 July 2018.

4.2.  The Board found that the applicant’s claims were not consistent with the country of origin information at the relevant time which undermined the applicant’s credibility.  The Board found it incredible that the applicant was involved in any of the events alleged.  The applicant alleged to be an Awami League member, yet the available country of origin information showed that since 2008 those in danger in Bangladesh were people against the Awami League, not those belonging to the Awami League.  The applicant suffered no real risk of harm of opposing political parties attacking him.

5)  Decision of the Judge

5.1.  The applicant filed a Form 86 with supporting affirmation before the Judge.

5.2.  The Judge did not accept the applicant’s bare claims without particulars.  He held that the applicant’s case was rejected by the Board due to his lack of credibility.  He held that finding of facts was within the province of the Director and the Board.  As the applicant did not show any prospect of success, the Judge refused to give leave to apply for judicial review.

6)  Grounds of appeal

6.  The applicant in his notice of appeal stated that his dispute was not private in nature.  He stated that there was a failure to consider his claim on the four applicable grounds of BOR 2, BOR 3, torture and persecution risk, and there was a failure to consider his country of origin information.

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 was 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 is no merit in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

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