RE MD SARIF

CACV 419/2019

[2020] HKCA 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 419 OF 2019

(ON APPEAL FROM HCAL NO. 603 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1.     This is an appeal against the decision of Deputy High Court Judge Josiah Lam who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

1.2.     At the hearing of the appeal, the applicant informed the Court that he would like to seek an adjournment of his appeal.  He relied on documents showing that he now has a family in Hong Kong and his daughter has serious neurological condition which will require operation although the date of the operation has not been fixed.  We have sympathy for the applicant but we have decided by this judgment not to grant an adjournment and will deal with the appeal now because the issue in this appeal is not related to his family situation in Hong Kong.  It is for the Director to decide whether on humanitarian grounds the applicant and his family should be given more time in Hong Kong before their repatriation so as to enable the daughter to receive proper medical treatment.  We trust the Director would exercise his discretion in a sympathetic way having considered the seriousness of the daughter’s medical condition.

2)  Background

2.1.     The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 14 January 2013.

2.2.     On 21 March 2013, the applicant lodged a torture claim which was rejected by an Immigration Officer on 4 December 2013.

2.3.     He lodged a non‑refoulement claim on 23 December 2013.  

2.4.     The basis of the applicant’s claim is that if he was to return to Bangladesh, he would be harmed or killed by the uncle of his former girlfriend who was the union chairman of the Awami League.  His former girlfriend had committed suicide and her family blamed it on the applicant.  The applicant was a supporter of a rival political party.

2.5.     The details of the applicant’s claim have been summarized by the Judge at [1] to [19] of the CALL‑1 Form.

3)  The Director’s Decision    

3.1.     In view of the rejection of the applicant’s claim for torture on 4 December 2013, the Director of Immigration (‘the Director’) only considered the applicant’s claim for non-refoulement under persecution risk, BOR 2 risk and BOR 3 risk.

3.2.     The Director decided against the applicant’s claim on 17 November 2016.

4)  The Board’s Decision

4.1.     The applicant appealed against the Director’s Decision to the Board on 29 November 2016.  After a hearing held on 14 March 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 26 March 2018.

4.2.     The Board found that the applicant had not made out a case that he was likely to be subjected to the ill‑treatment he feared and that such ill‑treatment would amount to persecution, violation of the right to life or torture.

4.3.     The Board was aware that the applicant had suffered no physical harm.  There was no evidence his alleged enemies acted on behalf of the state.  The situation that he complained of was not on account of any Convention reasons (race, religion, nationality, membership of a particular group or political opinion).

5)  Decision of the Judge

5.1.     The applicant complained before the Judge that the Board: unlawfully fettered its discretion; acted in a procedurally unfair manner; rendered irrational decisions; misdirected in law; failed to consider up to date country of origin information; cherry picking information; failed to consider state acquiescence. 

5.2.     The applicant complained about his assigned duty lawyer and that the appeal bundles were only delivered to him late in time.

5.3.     The Judge held that the applicant failed to specify what were the failures of his duty lawyer.  There was no absolute right to free legal representation at all stages of the proceedings.  There was language assistance provided to the applicant at the Director and Board level.  The applicant exaggerated his language problem.  No rules were breached regarding the delivery of bundles, and the applicant was aware of the contents of his case in any event.  There was essentially no evidential backing to the applicant’s complaints against the Board. 

6)  Grounds of appeal

6.1.     In summary the applicant stated in his notice of appeal, supplemental notice of appeal and affirmation in support of the appeal the following grounds :

1)     He does not agree with the judgment.

2)     The judgment was unreasonable and improper.

3)     The judgment was made without country of origin information consideration.

6.2.     The applicant’s skeleton arguments 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.  The Board’s Decision and the Decision of the Judge had already made the position clear.

7.3.     The Judge had in his decision fully addressed the applicant’s complaints against the Board and the Director.  We do not see how the decision can be said to be unreasonable and improper.

7.4.     With regard to the applicant’s complaint that the judgment did not consider the country of origin information, the Judge had in his decision referred to the Court of Appeal decision of Re Islam Rafiqul (CACV 219/2018) that the assessment of evidence and country of origin materials are primarily within the province of the Board and Director.  The Judge was not provided with new material which may cause doubts on the assessment by the Board and the Director.

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