RE MIAH MOHAMMED ARSHAD

CACV 345/2023, [2024] HKCA 144

On Appeal from [2023] HKCFI 2717

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 345 OF 2023

(ON APPEAL FROM HCAL 295 OF 2017)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Fung J (“Judge”) on 18 October 2023 refusing to grant leave for judicial review (“Judge’s Decision”). The intended judicial review sought to quash the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“Board”) dated 12 June 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against 2 decisions made by the Director of Immigration (“Director”) rejecting his non-refoulement claim (“NRF Claim”) by 2 notices of decision dated 30 December 2015 and 10 February 2017 respectively (“Director’s 1^st Decision” and “Director’s 2^nd Decision” respectively and “Director’s Decisions” collectively).

Bases and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a Bangladeshi national born in 1971 and a member of the political party Jamaat-e-Islami (“JEL”), is a fear of being harmed or killed by people from the rival political party Awami League (“AL”), including two men known as Tazul and Sumon.

3.  The circumstances giving rise to such alleged fear have been set out in paragraph 6 of the Director’s 1^st Decision, paragraphs 2 to 3 of the Board’s Decision, and [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 [2023] HKCFI 2717 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant has been a member of JEL since 2000.

(2)  He took part in meetings, rallies, and protests. However, he never held any official position in the party.

(3)  In an incident occurring in 2007 or 2008, AL people in the applicant’s village chased the applicant and other JEL supporters with wooden sticks since they did not want the JEL rally to proceed. The applicant was not injured.

(4)  One afternoon in early 2013, Tazul and Sumon together with 40 to 45 men went to the applicant’s grocery and stationery shop which the applicant had run since 1998. Tazul demanded the applicant to quit JEL or to close the shop, otherwise they would beat him up when they came back next time. The applicant closed his shop and went home. Those men did not follow him or did anything to harm him.

(5)  The applicant returned to his shop the next day. Tazul and Sumon, together with 15 to 20 men, went to his shop in the afternoon, demanding the applicant to close his shop. The applicant quickly left his shop in fear that he would be beaten up.

(6)  The next day, the applicant moved to Dhaka to stay with his friend to avoid further confrontation with Tazul and Sumon.

Entry into Hong Kong and lodgement of NRF Claim

5.  After having stayed with his friend in Dhaka for about 6 months, the applicant travelled to the mainland China on 27 October 2013. After having stayed in Guangzhou and Shenzhen for about 11 days, he entered Hong Kong from Shenzhen on 7 November 2013. He surrendered himself to the Immigration Department on 14 January 2014.

6.  The applicant raised the NRF claim on 25 February 2014.

Director’s Decisions

7.  The NRF claim was later processed by the Director under the Unified Screening Mechanism (“USM”) on the grounds of torture risk[1], persecution risk[2], and BOR3 risk[3]. The applicant submitted a completed a Non-refoulement Claim Form dated 23 September 2015 (“NCF”) and attended a screening interview with the Director’s representatives(s) on 7 December 2015.

8.  After considering the information provided by the applicant, the Director, by way of the Director’s 1^st Decision, rejected the NRF Claim based on the applicable grounds of torture risk, persecution risk and BOR3 risk. To sum up, the Director found that:

(1)  The applicant did not suffer any physical harm or injury in all the incidents said to have giving rise to the claimed fear. The alleged past ill-treatment inflicted on the applicant (if any) were of low intensity and frequency.

(2)  Apart from his home place or district, it is not accepted that there is any reasonable likelihood that the applicant will be harmed by the people of AL in Bangladesh.

(3)  Reasonable state protection and internal relocation alternatives would be available to the applicant in Bangladesh to lower or even negate the risk, if any.

9.  By letter dated 25 January 2017, the Director invited the applicant to submit additional facts in support of the NRF claim with express reference to BOR2 risk[4], which was not assessed in the Director’s 1^st Decision. The Director did not receive any reply from the applicant by the deadline. The Director thus proceeded to consider if the NRF claim could be substantiated based on BOR2 risk in the absence of any new materials. By the Director’s 2^nd Decision dated 10 February 2017, the applicant’s NRF claim based on BOR2 risk was also rejected.

Appeal to Board and Board’s Decision

10.  The applicant appealed to the Board.

11.  The Board conducted a rehearing of the NRF Claim on all 4 applicable grounds for non-refoulement on 13 March 2017. The applicant attended to give evidence and answer the Board’s questions, through an English/Bengali interpreter.

12.  The Board dismissed the appeal on all 4 applicable grounds for the following reasons.

13.  First, the NRF claim should fail even based on the applicant’s own assertions:

(1)  In all the incidents said to have giving rise to the feared risk of harm from people of the AL, the applicant had not been assaulted, let alone having suffered any injury which would meet the level of severity necessary for claiming torture risk, BOR3 risk or persecution risk. There is no foreseeable and real risk of harm in the future if the applicant returns to Bangladesh. There will also be no substantial BOR2 risk – risk to his life.

(2)  The claim based on the torture risk also fails on the additional reason that there was a lack of state involvement in the alleged ill treatment.

(3)  The claim based on persecution risk also failed for the additional reason that those said to be the source of risk do not come within the meaning of “populace” in refugee law.

(4)  In light of the COI, reasonable state protection and internal relocation options to other cities of Bangladesh are both available.

14.  Further, the Board considered the obvious lack of credibility on the applicant’s part an independent reason why the appeal should fail. The Board, after having heard the applicant’s testimony, found him dishonest and his story unbelievable. The applicant had suffered no injury, yet he chose to travel 2,400 km to Hong Kong when the obvious way to avoid Tazul and Sumon was to move elsewhere in Bangladesh, which he had done by moving to Dhaka where he stayed for 6 months without encountering any hostility. He had also delayed for 4 months (from 28 October 2013 to 25 February 2014) in raising the NFR claim, despite ample opportunities during the period for him to do so.

Application for leave for judicial review and Judge’s Decision

15.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 295/2017 on 15 June 2017, the applicant applied for leave for judicial review of the Board’s Decision. His proposed grounds as stated in the Form 86 make references to phrases commonly deployed in judicial review such as “procedural fairness”, “unreasonable” and “irrational” but without further particulars. He also accused the Board of relying on source of news which is unofficial, hearsay or outdated, but also without supporting particulars. The only complaint that came with details was his allegation that the Director only provided the hearing bundle to him 6 days before the appeal. Further, most of the documents were in English, but he had only limited English skills and no money to hire an interpreter. He did not have sufficient time to prepare for the hearing.

16.  The applicant attended the oral leave hearing in person. All he said was whatever he submitted was true. The Judge refused to grant leave for reasons stated at [12]-[18] of the Form CALL-1:

“12. These are however all just vague and bare assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or acted in a procedurally unfair manner, or how did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what COI were unofficially recognized or were hearsays or outdated. They are all just bare assertions without any details or particulars or elaborations from the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

15. Even if it is true that the hearing bundle indeed came to him late as alleged, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal. Accordingly, I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board either.

16. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17. The fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to Court of Appeal - grounds of appeal and submissions

17.  By the notice of appeal filed herein on 30 October 2023, the applicant appealed against the refusal of leave for judicial review on the ground that, in essence, he will be killed if he returns to Bangladesh.

18.  The applicant’s written submission dated 29 December 2023 can be summarised in the following 3 broad assertions:

(1)  He will be killed by his “enemy” if he returns to Bangladesh. He could not get help from the police or any authorities. He was “attacked” and “tortured brutally” in Bangladesh. He is afraid when he remembers the torture inflicted on him. The details in the 2^nd and 3^rd sentences were asserted for the first time in these appeal proceedings.

(2)  There are references to phrases commonly deployed in judicial review proceedings but without elaboration or particulars. These include complaints that the Judge was wrong as a matter of law, failed to apply the principle of irrationality, failed to apply the high standards of fairness, failed to apply the principle of procedural fairness, failed to analyse the applicant’s claims properly in his home country, and that the Judge’s decision is unreasonable.

(3)  There are also general and unparticularised complaints targeting the adjudicator, namely that he failed to give sufficient chance for the applicant to arrange relevant evidence for his appeal; that he relied on source of news which is not officially recognised, or is simply hearsay; that he was irrational in his finding as to whether was or is a pattern of gross and mass violation of human rights in Bangladesh; and that he had misdirected himself on the meaning of state protection and was irrational in assessing the existence of the same.

19.  The appeal was heard on 30 January 2024. The applicant appeared in person with the benefit of an English/Bengali interpreter. He indicated that he had nothing to add in further support of the appeal.

Discussion

20.  In view of the manner in which the applicant has conducted the application before the Judge and the appeal before us, we can dispose of this matter shortly.

21.  First, the role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)]

22.  Second, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst at [14(2)] and [14(4)].

23.  As recognised by the Judge, except the alleged delay in providing the applicant with the hearing bundle, what the applicant had provided in the Form 86 were but bare assertions which failed to identify any error of law, procedural unfairness or irrationality on the part of the Board in dismissing his appeal against the Director’s Decision.

24.  The alleged delay in providing the hearing bundle has been properly disposed of by the Judge. See again [14]-[15] of the Form CALL-1.

25.  The applicant has failed to identify any bases, either in the notice of appeal or written submissions, upon which the Court of Appeal can disturb the Judge’s Decision. The Court of Appeal will not re-hear his NRF claim, let alone entertaining the applicant new factual allegations. Those complaints against the adjudicator are misconceived for the Board’s Decision is not the subject of this appeal. Those complaints against the Judge are unparticularized bare assertions which do not merit any serious consideration.

26.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.

Disposition

27.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.