RE FAKIR MOHAMMAD EDDRIS

CACV 205/2020

[2021] HKCA 360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 205 OF 2020

(ON APPEAL FROM HCAL NO. 674 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 11 June 2020.

1.2  This appeal was scheduled to be heard on 26 January 2021.  Despite the directions contained in the letter from the High Court to the applicant dated 25 November 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 illegally.  He raised a non-refoulement claim on the basis that if he returned he would be harmed or killed by people from the Awami League because he is an active supporter of the rival Bangladesh Nationalist Party.  

2.2  The details of the applicant’s claim have been summarized by the Judge at [1] to [4] of the CALL-1 Form.

3)  The Director’s Decision

3.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 26 September 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 (‘the Director’s Decision’).

4)  The Board’s Decision

4.1  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 14 March 2018, the Board dismissed the applicant’s appeal against the Director’s Decision on 6 April 2018.

4.2  The Board found that at the commencement of the hearing before it, the applicant indicated that he wished to rely on the evidence contained in the bundle.  The applicant only made bare assertions and presented no objective proof to support his claim.  The Board did not find any substantial grounds for believing there is a real risk faced by the applicant upon returning to his home country.  It found that the applicant, even though previously had been attacked and threatened, was able to make good his escape.  The applicant did not have a position in his political party and there is no reason why the rival party would be interested in the applicant.  There was no evidence of the applicant sustaining pain and suffering from public officials.  Internal relocation was possible.

5)  Decision of the Judge

5.1  The applicant filed a Form 86 with a supporting affirmation.  He set out various grounds for review including :

(1)  The Director’s decision and the Board’s decision were unfair and Wednesbury unreasonable; there was not enough time for the applicant to arrange his evidence;

(2)  There is a genuine risk that the applicant will face torture if refouled;

(3)  The applicant suffered serious physical harm in Bangladesh; and

(4)  The applicant fears for his life and safety of being killed by his rival political party members.

5.2  The Judge held that the applicant’s alleged grounds were broad and vague assertions without specificity to the circumstances of his case.  

6)  Grounds of appeal

6.  The applicant in his notice of appeal stated that he will face hardship if he returned to Bangladesh.  He stated that the Board relied on source of information which was not officially recognized or simply hearsay.  He stated that the Board relied on cases which were outdated.

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.