RE MD BASIR UDDIN

CACV 135/2020

[2020] HKCA 959

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 135 OF 2020

(ON APPEAL FROM HCAL 1496/2019)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 20 May 2020, Deputy High Court Judge K W Lung (“the Judge”) dismissed the application for leave for judicial review in light of the applicant’s request to withdraw such application in respect of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 May 2019. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 9 February 2018 rejecting the applicant’s non-refoulement claim.

2.  On 26 May 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Bangladeshi national.  He last arrived in Hong Kong on 4 March 2013 and was permitted to remain as a visitor until 18 March 2013.  He overstayed, and was arrested by police on 25 April 2013 and was referred to the Immigration Department the next day.  On 27 April 2013 the applicant raised a torture claim, which was subsequently rejected by the Director on 21 November 2013.  He did not appeal against the rejection of his torture claim.

4.  On 19 August 2013, the applicant lodged a non-refoulement claim under the Unified Screening Mechanism, on grounds not already covered by his torture claim.

5.  The applicant’s current non-refoulement claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members of the Awami League, the governing party of Bangladesh.  In summary, the applicant’s case is that armed members of the Awami League made threats and attempted to extort money from him, after he participated in protests and demonstrations by an opposition party, Jamaat-e-Islami and donated large sums of money to that party.

6.  By a notice of decision dated 9 February 2018, the Director assessed the applicant’s non-refoulement claim on all applicable grounds, other than torture risk[1], and determined it against them.  Those grounds were BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4]. 

7.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 21 January 2019.  The Board found that the applicant’s evidence was inconsistent and contradictory.  The Board was not convinced that he had ever been asked to pay protection money or had ever been personally targeted by Awami League members.  The Board found that there was no well-founded fear of persecution or any real or substantial BOR 3 risk or BOR 2 risk he were to be refouled to Bangladesh.  Thus the Board dismissed the applicant’s appeal on 29 May 2019.

Decision of the court below

8.  On 3 June 2019, the applicant sought leave from the Court to apply for judicial review against the Board’s decision.  However, in his Form 86 and affirmation, he did not specify any grounds for judicial review.

9.  Subsequently, on 12 March 2020 the applicant applied to withdraw his judicial review application, by way of affirmation made and filed on 12 March 2020.  In that affirmation, the applicant deposed:

“ Withdraw judicial review. I want to go back to my home country Bangladesh becaus all my problem now finishe. Now also my family sick. Now I want to withdraw my case HCAL-1496/2019. Please help me thanks.” [sic]

10.  However, on 12 May 2020 the court received a note from the applicant addressed to the Judge’s clerk, in which he stated he was wrong in thinking that his problems in Bangladesh were solved, and that those problems not only remained but had increased, so he could not return to Bangladesh.  He also requested in that note that the Judge consider his application for leave for judicial review to be re-opened.

11.  After consideration of documents only, on 20 May 2020 the Judge acceded to the applicant’s request of 12 March 2020 and dismissed the application for leave to apply for judicial review.  The reasons for the refusal were set out at [5] – [7] of the Form CALL-1 ([2020] HKCFI 864, HCAL 1496/2019) as follows:

“ 5. By affirmation dated 12 March 2020, the applicant applied to withdraw his application for the reason that he wanted to go back to his own country as his problems in his country had been solved.

6. In the circumstances, it is clear that the applicant has no intention of proceeding with his application, which should be dismissed.

CONCLUSION

7. Accordingly, I accede to his request and dismiss his application.”

12.  Neither the Form CALL-1 nor the sealed order of 20 May 2020 make any reference to the applicant’s note of 12 May 2020.  It is unclear whether the Judge considered or was aware of the note of 12 May 2020.

Appeal to this Court

13.  On 26 May 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which he stated the following grounds of appeal:

“ … the Plaintiff 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 case which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.

14.  On the same day, he agreed in writing that his appeal may be heard by 2 judges.

15.  This Court directed on 1 September 2020 that the applicant to lodge his written submissions on appeal by 30 September 2020, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

16.  The applicant failed to lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper without oral hearing. 

Legal principles

17.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see 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 purpose 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 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 (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.

(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.  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

18.  The applicant did not in his grounds of appeal provide any particulars in support.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

19.  Although the Judge dismissed the application for leave for judicial review solely on the basis of the application to withdraw the judicial review (such withdrawal was subsequently retracted as mentioned above), this appeal is bound to fail and should be dismissed.

20.  The applicant’s argument that the Board relied on hearsay, outdated and/or unreliable information in coming to its decision and that the Board engaged in groundless speculation is simply not germane in light of the basis on which the Board dismissed the applicant’s claims.

21.  The Board rejected the applicant’s claims for non-refoulement protection primarily based on its assessment that the applicant’s evidence was unreliable and therefore the facts alleged by the applicant were not accepted.  Thus, the Board considered that there was no real or substantial risk of harm if he were to be refouled to Bangladesh. Such findings are within the province of the Board, and the Court will not interfere with such assessments unless they are reversible on public law grounds.  The applicant did not put forward any such ground in his application below.  Nor did he do so in this appeal.    

22.  Having considered the materials before us, we are of the view that there is no reasonably arguable ground to disturb the decision of the Board and his application for leave to apply for judicial review was correctly dismissed.

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