RE MOLLA OMUR FARUQ

CACV 155/2023, [2023] HKCA 1010

On appeal from [2023] HKCFI 1211

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 155 OF 2023

(ON APPEAL FROM HCAL NO. 795 OF 2019)

____________________

____________________

_________________

J U D G M E N T

_________________

Hon Anthony Chan J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 11 May 2023[1] refusing to give him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 6 March 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 17 May 2018 rejecting his non-refoulement claim.

2.  This appeal was scheduled to be heard on 8 August 2023. Despite the directions given by the Court on 13 June 2023, the applicant failed to lodge his skeleton argument by the stipulated time. Accordingly, the Court informed the applicant by letter dated 18 July 2023 that the hearing would be vacated and the appeal will be determined on paper, which we now do.

Background

3.  The applicant is a national of Bangladesh. He is married with two children. He claimed to be a member of the political organisation Jamaat-e-Islami (“JeI”) in Bangladesh. He entered Hong Kong illegally on 29 January 2015 and surrendered to the Immigration Department on the same day. On 9 April 2015, he lodged a non-refoulement claim based on his fear that if refouled to Bangladesh, he would be harmed or killed by his enemies from the Awami League (“AL”) who wanted to take possession of his family land. The details of his claim are set out at [6] of the Director’s Decision and summarised by the Judge at [4] to [5] of the Form CALL-1.

4.  In gist, the applicant joined the JeI in 1997 under the influence of his father and took part in party meetings and rallies. He claimed that since 1993, some members of the AL had been harassing, threatening and attacking him and his family for the possession of their family land, which consists of a total of 10 plots of land in the size of seven “Kani” (approximately the size of 15 football fields). He claimed that three out of his nine siblings were even killed in 1993 in resisting the forceful occupation by their enemies. In an incident in 2005, the applicant injured one of the attackers from the AL named Rafik. In fear of retribution, the applicant escaped to Saudi Arabia where he stayed for 9 years uneventfully and returned to Bangladesh in 2014 to stay with his paternal cousin in Dhaka. He claimed that he was still wanted by the enemies as he is the eldest son of the family and is going to inherit the family land, and that he was falsely implicated in the murder of an AL leader named Jahidul in 2014 which led to a bombing incident killing one of the supporters of his own party JeI. Fearing for his safety, the applicant fled to Hong Kong. He claimed that internal relocation is not a viable option as he will be hunted down by people from the AL and its extensive network.

The Director’s decision

5.  By a Notice of Decision dated 17 May 2018, the Director rejected the applicant’s claim on all applicable grounds, namely, BOR 2 risk^[2], BOR 3 risk^[3], persecution risk^[4] and torture risk^[5] grounds. The findings of the Director were summarised by the Judge at [7] of the Form CALL-1.

The Board’s decision

6.  The applicant appealed to the Board.  The Board heard the appeal at a hearing held on 11 September 2018 and 3 October 2018.  By its decision dated 6 March 2019, the Board dismissed the appeal.

7.  In gist, the Board accepted that the applicant was a member of the JeI albeit in the “low level” of membership, and that he had stayed in Saudi Arabia from 2005 to 2014[6].  However, the Board identified serious credibility issues in numerous aspects of his claim, particularly on the omission of material facts such as the murder of his three siblings in 1993 and the bombing incident in 2014 which led to the Board’s conclusion that the applicant and his family members have never suffered any threats or actual harm or death from the supporters of the AL, and that the applicant’s political profile was of no interest to the AL[7]. The Board also found it inconceivable that the applicant’s father had not dealt with the land dispute by other means despite the decades of harassment and violence suffered by the family[8]. Based on the available country of origin information (“COI”), the Board assessed that even if the alleged risk of harm existed, it would be negated by the availability of state protection[9]. Further, the Board found that internal relocation would be a viable option as the applicant can reasonably live without fear of harm or undue hardship if he relocates to the City of Dhaka, the City of Barisal, the Benapole Municipal and the City of Chittagong[10].

8.  In the circumstances, the Board did not accept the applicant would face any risk of harm as claimed if he were to return to Bangladesh.  The Board concluded that the applicant failed to establish entitlement to non-refoulement protection under any of the applicable grounds and dismissed his appeal.

The Judge’s decision

9.  The applicant filed a Form 86 on 21 March 2019 to apply for leave to judicially review the Board’s decision.  In his supporting affirmation, he simply invited the court to refer to the enclosed copy of the Board’s decision without raising any specific ground for seeking relief.

10.  The Judge dealt with the application on paper.  By a Form CALL-1 dated 11 May 2023, the Judge refused to give leave for judicial review and gave his reasons in [13] to [18] as follows:

“13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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 the decision of the Board.”

16. The Board had assessed his evidence and found that he would not be subjected to any risk as he claimed if he returned to his country. There is no valid reason from the applicant to challenge the Board’s Decision.

17. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

The grounds of appeal

11.  The applicant filed a notice of appeal on 22 May 2023 to appeal the Judge’s decision.  The notice of appeal stated the following as grounds of appeal:

“The [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

12.  The applicant failed to lodge any skeleton argument in support of his appeal.  No application was made by the applicant to extend the time for the lodging of skeleton argument.  As stated in the letter from the Court dated 18 July 2023, the applicant is deemed to have waived his right to have an oral hearing.  Accordingly, the Court will determine the appeal on paper based on the materials before it.

Our reasons for decision

13.  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]:

(1)  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board, who are responsible for assessing the credibility of witnesses, the evidence and country of origin conditions, and make findings of fact pertaining to whether there are risks of harm, availability of state protection and viability of internal relocation.

(2)  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

(3)  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.

14.  In light of the established legal principles set out above, we are of the view that the grounds of appeal put forward by the applicant have no merits.  Our reasons are as follows.

(1)  Critically, the applicant has not pointed to any error in the Judge’s decision.  His complaints in the notice of appeal are directed solely at the Board’s decision.

(2)  The complaint about the Board’s use of and reliance on the COI is vague and devoid of particulars.  The applicant has not set out precisely which piece of COI relied on by the Board was incorrect or outdated, and/or how that would impact on the correctness of the Board’s conclusion on each of the applicable grounds.  It is evident from the Board’s decision that it had considered and analysed the applicant’s evidence in detail as well as the COI materials before reaching its own findings and conclusion on each aspect of the applicant’s claim.

(3)  The applicant’s assertion that he will face hardship if he returns to his home country cannot stand in light of the Board’s rejection of his claim and the evidence underlying his claim.  Assessment of credibility and evaluation of risks are matters for the Board, who is the primary decision maker.  The Court may only review the findings made by a primary decision maker if it is demonstrated that there are errors of law, irrationality or procedural irregularities or unfairness.  The applicant has not advanced any arguable grounds in this appeal to challenge the Board’s assessment of credibility.

(4)  For these reasons, we cannot discern any basis for interfering with the Board’s assessment of the applicant’s claim. 

15.  Having reviewed the decisions of the Director and the Board and the reasons given by the Judge for refusing leave to apply for judicial review, we agree with the Judge that there is no error of law or procedure in the decision of the Board or any unfairness in the process, that the intended judicial review had no realistic prospect of success, and that leave to apply for judicial review should be refused.

16.  Accordingly, we dismiss the appeal.

[1]  [2023] HKCFI 1211

[2]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

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

[4]  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 and its 1967 Protocol.

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

[6]  [135] to [141] of the Board’s decision 

[7]  [167] of the Board’s decision

[8]  [144] to [146] of the Board’s decision

[9]  [170] to [171] of the Board’s decision

[10]  [207] of the Board’s decision