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CACV 338/2021
[2021] HKCA 1575
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 338 OF 2021
(ON APPEAL FROM HCAL NO 1061 OF 2018)
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BETWEEN
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HOQUE AHIDUL |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative
Interested Party |
________________________
| Before: |
Hon Au and Chow JJA in Court |
| Date of Written Submission: |
19 July 2021 |
| Date of Judgment: |
4 November 2021 |
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. This is an appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 22 June 2021 refusing to grant leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 4 June 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 July 2017 rejecting the Applicant’s non-refoulement claim.
BACKGROUND
2. The Applicant is a national of Bangladesh. He entered Hong Kong illegally and was arrested on 11 September 2015. He lodged a non-refoulement claim form on 27 June 2017.
3. The Applicant claims that if refouled to Bangladesh, he would be at risk of being harmed or killed by certain local supporters of a rival political party, Awami League, due to his support of the Bangladesh Nationalist Party, and/or by the police over certain false charges against him. Details of the Applicant’s claim have been summarised by the Judge at §§1-3 of the CALL-1 Form.
4. By a Notice of Decision dated 28 July 2017, the Director rejected the Applicant’s non-refoulement claim on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk,[3] and persecution risk[4] (“the Director’s Decision”).
5. On 10 August 2017, the Applicant appealed the Director’s Decision to the Board. On 1 March 2018, the Board heard the appeal.
6. On 4 June 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”). The Board was concerned about the Applicant’s credibility and found him to be a poor witness who had given scant details for his claim (see Form CALL-1 at §8). The Board concluded that the Applicant had failed to establish any applicable grounds for non-refoulement protection.
THE JUDGE’S DECISION
7. On 11 June 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision, and a supporting affirmation.
8. The Judge found that the Applicant provided no ground for seeking relief, and his supporting affirmation merely attached copies of documents from his appeal bundle before the Board without putting forward any proper ground for his intended application (§9).
9. Citing various authorities including Nupur Mst v Director of Immigration [2018] HKCA 524, the Judge held that judicial review does not operate as a rehearing of a non-refoulement claim. 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 (§10).
10. The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny (§13), and concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review (§14).
11. Accordingly, on 22 June 2021, the Judge refused the Applicant’s application for leave to apply for judicial review.
THIS APPEAL
12. In his Notice of Appeal dated 5 July 2021, the Applicant complained about his language difficulties with the interpreter. The Applicant also complained that the Judge failed to carry out sufficient research and inquiry into Country of Origin Information (“COI”). On the same date, the Applicant consented to the appeal being disposed of on paper without an oral hearing.
13. In his 5-page written submissions dated 19 July 2021, the Applicant repeated his grounds for judicial review of the Board’s Decision and emphasised three particular grounds:
(a) the Board’s approach to evaluating key evidence was unfair;
(b) the evidence was mischaracterized, which was procedurally unfair; and
(c) the failure to consider COI in relation to the condition of his home country was also procedurally unfair.
DISCUSSION
14. In non-refoulement cases, the Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board. The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).
15. 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
16. In his grounds of appeal, the Applicant complains about the Board’s assessment of evidence, risk of harm, and viability of internal relocation. As this Court has stated time and again, the determination of the merits of a non-refoulement claim is a matter for the Board, not the court. The Applicant has not identified any errors of law or failure by the Judge to take account of relevant matters already placed before him, or showed that the Judge’s decision is otherwise plainly wrong.
17. In Re Karamjit Singh CACV 78/2018 at §9, it was held that the high standard of fairness required in the assessment of a non-refoulement claim does not include the provision of interpretation service at any time that the Applicant desires or requires.
18. Further, the Applicant’s documents in these proceedings, including the notice of appeal, supporting affirmation, and written submissions, are all written in English. This indicates either that the Applicant is familiar with the English language, or has access to, or is able to seek, such language assistance as needed.
19. For the above reasons, the present appeal has no merits, and is dismissed.
| (Thomas Au) |
(Anderson Chow) |
| Justice of Appeal |
Justice of Appeal |
The Applicant, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his 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 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[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.
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