MD BORHAN UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 6/2022

[2022] HKCA 1843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 6 OF 2022

(ON APPEAL FROM HCAL NO 2657 OF 2019)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 28 December 2021, DHCJ P. Li (“the Judge”) allowed the applicant to reinstate his application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 6 September 2019 but refused his application for leave to apply for judicial review. In the Board’s decision, it upheld the decision of the Director of Immigration (“the Director”) dated 6 August 2018 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 5 January 2022, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.

3.  In compliance with the directions given by the Registrar of Civil Appeals on 5 January 2022, the applicant lodged his written submissions on 17 January 2022.

4.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

Background

5.  The applicant is a national of Bangladesh. He entered Hong Kong illegally on 21 December 2014. He was arrested by the police and was subsequently detained in the Castle Peak Bay Immigration Centre by the Immigration Department. On 25 December 2014, he raised the non-refoulement claim alleging that if refouled, he would be harmed or even killed by people from the Awami League (“AL”) as he was a supporter of Jamat Islam Party (“JIP”). The factual background of this case was succinctly summarized by the Judge in [2] – [9] of the Form CALL-1 ([2021] HKCFI 3878).

6.  As mentioned earlier, in a Decision dated 6 August 2018, the Director having assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], determined it against him.

7.  The applicant appealed the Director’s decision to the Board. He attended an oral hearing on 19 June 2019 and by its decision dated 6 September 2019, the Board dismissed his appeal. For the reasons set out in [41] – [64] of its decision, the Board rejected the applicant’s case for lack of credibility, as his evidence was evasive and inconsistent. In this regard, the applicant had explained that he was not well educated, and also claimed that he had a poor memory due to a head injury. However, the Board found that he was able to give a detailed and organised answer in his Non-refoulement Claim Form (“NCF”) about his immigration history and the reason why he left Bangladesh, and it did not tally with the picture he tried to portray. Even on his own evidence, he only suffered injuries on one occasion, and it fell far short of the minimum level of severity. As such, the Board did not find that the applicant would face risk of torture or any other form of proscribed harm upon his return to Bangladesh [67] - [85]. Further there is no evidence to suggest any state involvement or acquiescence. Relevant country of origin information (“COI”) suggested that there is reasonable state protection [86] – [91] and internal relocation is a reasonable and viable option [92] – [99]. For the aforesaid reasons, the Board rejected the applicant’s non-refoulement claim on all applicable grounds.

Decision of the court below

8.  On 11 September 2019, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision. In his affirmation in support, he did not advance any ground to challenge the Board’s decision.

9.  On 1 April 2021, he filed an affirmation to the court requesting to withdraw his leave application. He submitted that his problem had been resolved and he would like to return to Bangladesh as soon as possible. Leave was granted to withdraw his application for leave to apply for judicial review on 16 April 2021. However, on 27 August 2021, he filed another affirmation requesting to re-instate his leave application. He stated that his problem had not been resolved.

10.  The applicant attended an oral hearing on 25 October 2021. The Judge allowed the application for leave to apply for judicial review to be reinstated, but refused to grant leave to apply for judicial review for reasons set out in [19] – [21] of the JR Decision:

“19. In judicial review, this court is to decide whether there is any error in law and procedure [and] whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.

20. Apart from the inconsistencies pointed out by the adjudicator, the manner he answered simple questions was revealing. I agree that the applicant was not truthful. The adjudicator was justified in rejecting the factual basis of his claim. I agree with the conclusion of the adjudicator.

21. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.”

Appeal to this Court

11.  On 5 January 2022, the applicant filed his Notice of Appeal and he advanced the following grounds:

“The High Court refused my leave to apply for judicial review. The court did not show any cause. The court did not find any error of process. I want to show some error of proceding (sic).”

12.  In his written submissions, he stated that his enemy is ruling the country. The present government, local administration and the police are all against him. Although he told his problems to the Director and the Board, they rejected his claim and the Judge did not find any error in their respective decisions. He doubted if the Judge had read the Board’s decision as the Adjudicator considered that the Bangladeshi police can protect him and he can safely relocate to other places in Bangladesh. He claimed that the Bangladeshi police is in fact his enemy and he has no safe place in his home country.

Legal principles

13.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:

(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 on appeal, which operates as a re-hearing, 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 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. 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.

(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, or for running arguments which could and should have been raised but not raised before the judge. In the determination of 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 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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

14.  The applicant did not in his Notice of Appeal or his written submissions provide any proper ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision. Although he said he doubted if the Judge had read the Board’s decision, it was clear that the Judge had, as he referred to certain passages in it [12]. General assertions that the Judge did not properly consider the Board’s decision without giving any particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578.

15.  It is clear from the Board’s decision that it rejected the applicant’s case for lack of credibility. Even on the account of his own evidence that he was attacked once and did not sustain any serious injury that attained the minimum level of severity. There was no evidence to suggest any state instigation or acquiescence. Relevant COI showed that there is reasonable state protection and internal relocation is a viable option. The Board thus rejected the applicant’s non-refoulement claim on all applicable grounds. The Board was entitled to make the findings as it did and we find no valid public law ground to intervene.

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified. We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

17.  For the above reasons, this appeal is dismissed.