RE MD REPON MONSE

CACV 426/2019

[2020] HKCA 91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 426 OF 2019

(ON APPEAL FROM HCAL NO. 1693 OF 2018)

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J U D G M E N T

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Hon Toh J (giving Judgment of the Court) :

1) The appeal

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board with the Director of Immigration as an interested party.

2) Background

2.1  The applicant is a national of Bangladesh. He entered Hong Kong legally but overstayed. He lodged a non-refoulement claim on 16 December 2009 on the basis that if he returned to Bangladesh, he would be harmed or killed by members of the Awami League.

2.2   The details of the applicant’s claim have been summarized by the Judge at [3] of the CALL-1 Form.

3) The Director’s Decision

3.  The Director of Immigration decided against the applicant’s claim on 31 August 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 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 18 May 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 27 July 2018.

4.2  The Board’s Decision found that the applicant’s case had inconsistencies and contradictions in his evidence in relation to who threatened him and the alleged murder charge he said the police framed him up with. As a result, the Board simply disbelieved his evidence as to the facts of his claim that he was attacked by the Awami League. The Board found that state protection was available.

5) Decision of the Judge

5.1  The applicant complained before the Judge that the hearing bundle was given to him shortly before the appeal. He complained that the bundles were in English. He complained that BOR 2 was assessed without screening. He complained that the Board relied on hearsay and out of date country of origin information. He complained that he was not legally represented before the Board.

5.2  The Judge held that when the applicant appeared before him, the applicant confirmed that he had a fair hearing before the Director and the Board. He also confirmed he understood the Director’s Decision as his lawyer has explained it to him. He confirmed that his friend explained the hearing bundle to him. The Judge held that there was a screening interview between the applicant and the Director regarding BOR 2. There was no absolute right to legal representation at all stages of the proceedings.

6) Grounds of appeal

6.1  In summary the applicant stated in his Notice of Appeal and affirmation in support the following grounds :

(1) The Judge was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Judge failed to provide detailed reasons.

(3) There was no consideration of country of origin information in the Judgment.

6.2  The applicant’s skeleton submission put forward very broad and general notions of non-refoulement principles without elaborating on the specifics of how they relate to the circumstances of his case.

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 to and rejected by 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 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 are no merits in the applicant’s appeal. It is important to bear in mind what the Judge said about the decision of the Board :

‘The Board considered the applicant’s case and found that there were inconsistencies and contradictions in his evidence in relation to who threatened him and the alleged murder charge he said the police would frame him up.  As a result, the Board simply disbelieved his evidence as to the facts of his claim that he was assaulted by the AL people or that he was targeted by the AL people and that state protection was available to him if he were assault.’

7.3  Unless there is a proper factual foundation for the applicant to raise his claim, the legal principles relevant to a claim of this type will not be engaged.  Likewise his complaints that the Judge had not considered state acquiescence or country of origin information are irrelevant because the Judge did not need to consider them in the first place.  In our view the Judge had given sufficient reasons.

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