SHAHIDUL ISLAM v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 526/2018

[2019] HKCA 240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 526 OF 2018

(ON APPEAL FROM HCAL NO 72 OF 2018)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 12 October 2018. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Bangladesh who arrived in Hong Kong on 5 September 2006 with permission to remain as a visitor up to 19 September 2006.  He overstayed and was arrested by police on 2 September 2007.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on the basis that if he should return to Bangladesh he would be harmed or killed by certain members of the rival political party Bangladesh Nationalist Party (“BNP”).  Upon his torture claim being rejected, he lodged a non-refoulement claim on the same basis.  He has been released on recognizance pending the determination of his claim.

The Director’s decision

3.  By a Notice of Decision dated 24 November 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered[1] BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

4.  The Director considered that the low intensity and frequency of ill-treatment in the past is indicative of the unlikelihood of future risk of harm. Besides, BNP has already lost its governance.  Awami League (“AL”), of which the applicant claimed to be a member, is the current ruling party of Bangladesh so the Director did not accept that the BNP members were so influential or powerful as alleged and would inflict further harm upon the applicant.  In addition, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director.

The Board’s decision

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 22 November 2017.  The Board did not accept that the applicant would face a real risk of harm at the hands of BNP activists should he return to his home area as AL are in power in his area as well as throughout the country.  The Board also considered that any risk he faces as an AL activist in his area can be avoided by availing himself of the protection of the state.  Therefore, the appeal was rejected on 11 January 2018.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 15 January 2018 to seek leave to apply for judicial review against the decision of the Board on the grounds that the adjudicator unlawfully fettered his discretion, acted in a procedurally unfair manner, rendered unreasonable or irrational decisions, failed to meet the greater care and duty owed to a self-represented claimant, and relied on information which is of little or no relevance or is outdated.

The judge’s decision

7.  The judge decided that the applicant’s complaints were just broad and vague assertions without particulars or specifics or elaborations except for the complaint about the hearing bundle. The judge did not find anything amiss arising from the hearing bundle as most of the documents should be well familiar to the applicant as they had already been made available to him earlier when he still had legal representation and he never raised any issue or requested for further time at the oral hearing before the adjudicator.  The judge also did not find any error of law or procedural unfairness in the decisions of both the Director and the Board or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

8.  The judge was not satisfied that the applicant has any prospect of success in the intended judicial review and refused the leave application accordingly.

9.  The applicant filed a Notice of Appeal against the decision of the judge on 23 October 2018.

The grounds of appeal

10.  The grounds of appeal were set out in an affirmation of the applicant affirmed on 23 October 2018 and are as follows:

(1)   the judge was wrong in law in holding that there was no state acquiescence or involvement; and

(2)   the judge failed to provide detailed reason in support of his decision.

Non-compliance with unless order

11.  Directions were given by the Registrar of Civil Appeals on 30 November 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge a skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

12.  The appeal was scheduled to be heard on 11 March 2019.  A notice of hearing of the appeal dated 22 January 2019 was issued and sent to the applicant by registered post but the mail was unclaimed and was returned to the court on 13 February 2019.

13.  The applicant failed to lodge a skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 11 February 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  The court informed the applicant that the hearing date of 11 March 2019 has been vacated by letter dated 12 February 2019 and that his appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

14.  The applicable legal principles have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and are as follows.

15.  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 Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are matters 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.

16.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

18.  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.

Analysis of the grounds of appeal

19.  In respect of ground (1), the applicant did not raise any ground relating to state acquiescence or involvement in his application for leave to apply for judicial review.

20.  The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive not canvassed at the Court of First Instance and for which leave has not been sought within time.  In any event, the applicant is a member of AL which is the ruling party in Bangladesh and he also admitted in the hearing before the Board that the Bangladeshi government did take action against BNP.  This ground is bound to fail.

21.  The applicant alleged in ground (2) that the judge failed to provide detailed reasons for his decision.  This allegation is without merit.  The judge set out clear and adequate reasons in the CALL‑1 Form ([2018] HKCFI 2191).  Thus, ground (2) has no merit.

Disposition

22.  For the above reasons, there is no merit in the appeal and no prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.