MASUD RANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 571/2020

[2021] HKCA 880

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 571 OF 2020

(ON APPEAL FROM HCAL NO 968 OF 2018)

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J U D G M E N T

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Hon Lok J (giving the Judgment of the Court):

Introduction

1.  On 15 October 2020, Deputy High Court Judge C P Pang (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 18 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 30 December 2016 rejecting the applicant’s non-refoulement claim.

2.  On 23 October 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3.  The applicant is a Bangladeshi national.  He last arrived in Hong Kong on 24 December 2007, and was initially permitted to remain as a visitor until 31 December 2007, later extended to 7 January 2008.  He did not depart and has overstayed. On 14 April 2008, he was arrested by police for overstaying and was referred to the Immigration Department on 16 April 2008.  The applicant lodged his non-refoulement claim on 26 April 2008.

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members or supporters of the Awami League or by his creditor, Babul.  The factual background was set at paragraphs 29 to 37 of the Board’s decision.

5.  By notice of decision dated 30 December 2016, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against him.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3] and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 5 December 2017, during which the applicant gave evidence with the assistance of a Bengali interpreter.  The Board found that he was not a credible or truthful witness, due to the many inconsistencies, contradictions and discrepancies in his evidence, and rejected all his factual claims.

7.  As such, the Board found that there was no real risk of harm in the event of refoulement.  Thus the Board dismissed the applicant’s appeal on 18 May 2018 on all the applicable grounds.

Decision of the court below

8.  On 29 May 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. In his supporting affirmation, he stated that he was not satisfied with the Director and the Board’s decisions, that he was still afraid to return to his country and that his life was not safe.  However, he did not raise any grounds for judicial review.

9.  Following consideration of the documents only, the Judge, on 15 October 2020, refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [19] of the Form CALL-1 ([2020] HKCFI 2639, HCAL 968/2018) as follows:

“11. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on discussing the latter’s decision.

13. In the present case, the Board in fact rejected the applicant’s appeal/ petition on the ground that it disbelieved the applicant and rejected the account of primary facts based on the major inconsistencies and contradictions in the applicant’s evidence. On the factual findings, there would be no basis for the applicant’s claim on all applicable grounds.

14. As explained above, the assessments of evidence and risk of harm are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.

15. The grounds/ complaints raised by the applicant in his Form 86 and affirmation contained nothing to demonstrate why the Board was unfair or unreasonable in the public law sense. I do not find any reasonably arguable basis to challenge the findings of the Board.

16. The applicant’s conduct in Hong Kong by his delay in lodging the claim for protection could have damaged his credibility and was inconsistent with someone in genuine fear for his life and safety.

17. Indeed, even on his own account, the alleged past experiences indicate only a remote and unreal risk that he would be killed or seriously harmed in his country. There was no valid reason why AL would target him and still wish to pursue him after so many years. It can hardly be established that the applicant would be at real risk of any type of proscribed harm, if refouled.

18. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately. There cannot be any criticism of the Board’s determination which is eminently reasonable.

19. 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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.”

Appeal to this Court

10.  On 23 October 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated ground of appeal is that there was a failure “to conduct sufficient enquiry in the relevant country of origin condition”.

11.  This Court directed on 14 April 2021 that the applicant must lodge his written submissions on appeal by 13 May 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

12.  The applicant has failed to lodge any submissions as directed.  The hearing date is therefore vacated and this appeal is disposed of on paper without a hearing.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 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 the decision of the Board.

(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 and rejected by the judge or for running arguments which could and should have been raised but not raised before 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 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. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  The applicant did not provide any particulars in support of his ground of appeal, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.  As we would only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its adverse findings on the applicant’s credibility.  Such findings are within the province of the Board, and the Court will not interfere with such assessments unless they are reversible on public law grounds.

17.  The applicant’s argument in his Notice of Appeal that that there was a failure “to conduct sufficient enquiry in the relevant country of origin condition” is clearly misconceived.  Since the Board found that the applicant was not a credible witness due to the many inconsistencies and deficiencies in his evidence, it was not necessary to consider country of origin conditions.

18.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave.

19.  For these reasons, this appeal is dismissed.