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CACV 446/2024, [2025] HKCA 86
On Appeal From [2024] HKCFI 2748
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 446 OF 2024
(ON APPEAL FROM HCAL NO 2050 OF 2019)
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BETWEEN
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SHAKH MD RASEL |
Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE |
Putative
Respondent |
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and |
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DIRECTOR OF IMMIGRATION |
Putative |
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Interested Party |
_____________________
| Before: |
Hon Chow JA and Lisa Wong J in Court |
| Date of Hearing: |
22 January 2025 |
| Date of Judgment: |
13 February 2025 |
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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 the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 21 October 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 12 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 January 2019.
BACKGROUND
2. The Applicant is a national of Bangladesh. He claimed that he entered Hong Kong illegally on 26 May 2015. He was arrested by the police on 27 May 2015. On 30 May 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Awami League (“AL”) because he was a supporter of another political party, the Bangladesh Nationalist Party (“BNP”), and he refused to join AL. Details of the Applicant’s claim have been summarised by the Judge at §§3-7 of his decision dated 21 October 2024.
3. By a Notice of Decision dated 21 January 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].
4. The Applicant appealed the Director’s Decision to the Board. On 8 April 2019, the Applicant attended a hearing before the Board and gave oral evidence. On 12 July 2019, the Board dismissed the Applicant’s appeal and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§11 and 12 of his decision, as follows:
“[11] The Board found the [Applicant’s] claims about BNP and the harassments by AL members were generally consistent with the country of origin information [37]. The Board was satisfied that the applicant was an ordinary member/supporter of BNP and that he had attended a number of BNP rallies [41]. The account of events given by the [Applicant], including the claimed threats and minor assaults from AL members were also accepted in general [42]-[45].
[12] The Board found the [Applicant] faced a small though nonetheless real risk that he would suffer serious harm from AL. However, he could avoid the claimed risk by internal relocation. Based on such findings, the Board concluded that the [Applicant’s] case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [47]-[78].”
THE JUDGE’S DECISION
5. On 18 July 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. In the Form 86, the Applicant alleged that the Board acted in breach of procedural fairness in rejecting his appeal. The complaint of unfairness was elaborated by the Applicant in his supporting affirmation of the same date. The Applicant’s grounds of intended challenge were summarised by the Judge at §15 of his decision, as follows:
“(1) The hearing bundle was given to him shortly before the hearing. The documents are mostly in English, but there is no translation. He was not legally represented at the appeal hearing. However, he had answered all questions. Yet, the Board did not accept his evidence.
(2) He had requested the Board to notify him of the Board’s Decision by phone, but the Board did not do so.
(3) The Board had relied on the source of news which is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All of these cause the Board to speculate that he is safe to return to his country.
(4) The adjudicator should go to his country to understand the real situation there.
(5) The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirements.
(6) The Board’s Decision is unreasonable or irrational in the public law sense.
(7) The Board failed to meet the greater care and duty owed to him as a self-represented claimant.”
6. On 21 October 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[16] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…
[17] Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said that the Board was not wrong. Nevertheless, he asked the Court to review the Board’s Decision.
…
[19] The Board, having accepted the [Applicant’s] evidence that he may have real risk if he returns to Bangladesh, came to its conclusion that he may avoid the risk by internal relocation.
[20] The [Applicant’s] grounds under paragraph 15 do not assist him. He was not entitled to translation all the time[5]. He was also not entitled to free legal representation at all stages of the proceedings[6]. Grounds (3), (5), (6) and (7) are bare assertions without any evidence in support and they are not valid to challenge the Board’s Decision[7]. The Board was not obligated to notify him of the Board’s Decision by phone. The Board can rely on the country of origin information without going to his country to understand the situation there. All of the grounds fail.
[21] There is no reason that the Court should interfere with the Board’s finding of the facts and conclusion.
[22] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”
THIS APPEAL
7. In his Notice of Appeal filed on 24 October 2024, the Applicant contended, inter alia, that:
(1) The Director failed to appreciate or give proper weight to the presence of state acquiescence in the harm or threat of harm directed against the Applicant.
(2) The Adjudicator failed to make sufficient enquiries before finalising his decision.
(3) The Adjudicator failed to give a sufficient opportunity to the Applicant to arrange for relevant evidence to be adduced in support of his non-refoulement claim and his appeal.
(4) This was a clear case of unfair attitude shown by the Director as he referred to or relied upon country of origin information (“COI”) which suited his pre-conceived conclusion.
8. In his 4-page written submissions lodged on 23 December 2024, the Applicant made generic submissions on some general principles of law, including the propositions that high standards of fairness are required in the determination of a torture claim and a decision-maker is under a duty to act fairly, but he failed to explain how they are applicable to his case. He also submitted that the Board erred in its formulaic approach by simply trying to see whether it could find fault with the Director’s Decision, without scrutinising the Director’s Decision or considering the conditions of the Applicant’s country of origin.
9. At the hearing of the present appeal, the Applicant stated that he did not want to leave Hong Kong now and wish to go later because there was/were some problem(s) in his country.
DISCUSSION
10. 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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).
11. Further, the assessment of evidence, COI, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
12. The matters raised in the Applicant’s Notice of Appeal are vague and general, and are directed at the decisions of the Director or the Board, but not the decision of the Judge. They do not give rise to any valid ground of appeal. The Board did consider the relevant COI in determining the Applicant’s claim for non-refoulement protection, in particular in coming to the view that internal relocation was a viable option to the Applicant (see §§34(e), 61, 62 and 75 of the Board’s Decision). The complaint that the Board did not consider the conditions of the Applicant’s country of origin is clearly without foundation.
13. The Applicant has failed to point to or substantiate any error of the Judge in his decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
14. The Applicant’s appeal has no merits, and is dismissed.
(Anderson Chow)
Justice of Appeal
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(Lisa Wong)
Judge of the Court of
First Instance
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The Applicant, acting in person
[1] 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.
[2] 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.
[3] 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.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held: “18. … … Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”
[6] The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held: “22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
[7] The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held: “20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].
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