RE KHANDAKAR ALIMUZAMAN

CAMP 110/2021

[2021] HKCA 1586

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 110 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 1965 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  On 1 September 2020, Deputy High Court Judge Bruno Chan (“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 (“Board”) dated 11 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 15 December 2016 rejecting the applicant’s non‑refoulement claim.

2.  On 16 March 2021, the Judge refused to grant leave for the applicant to appeal against his decision of 1 September 2020.

3.  By a summons filed 12 April 2021, the applicant sought leave from this Court to appeal out of time against the Judge’s decision of 1 September 2020.

Background

4.  The applicant is a national of Bangladesh.  He arrived in Hong Kong on 25 March 2006 and was permitted to remain as a visitor until 8 April 2006.  He did not depart, and overstayed.  The applicant was arrested by the police on 11 November 2010 for overstaying.  He raised a non‑refoulement claim on 13 November 2010. 

5.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by his uncle, due to a dispute between them regarding certain farmland inherited from the applicant’s grandfather. The factual background of his claim was summarized by the Judge in [2]‑[3] of the Form CALL‑1 ([2020] HKCFI 2124, HCAL 1965/2018).

6.  By two notices of decision dated 19 December 2014 and 15 December 2016 respectively, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered BOR 3 risk,[1] the persecution risk,[2] and the torture risk,[3] and the latter covered BOR 2 risk.[4]

7.  The applicant brought separate appeals to the Board against the Director’s decisions.  On 31 August 2015 the Board dismissed the appeal against the Director’s decision dated 19 December 2014; that decision of the Board is not the subject of the intended appeal to this Court. 

8.  As for the applicant’s appeal to the Board against the Director’s decision dated 15 December 2016, an oral hearing was held on 5 June 2018, during which the applicant answered questions from the Board. The Board found that the applicant’s evidence of BOR 2 risk consisted entirely of hearsay, documents that did not relate to the applicant, or unsubstantiated allegations.  The Board decided to give no weight to the applicant’s evidence, and found that he had failed to establish BOR 2 risk in the event of refoulement.  The Board dismissed the appeal on 11 September 2018.

The Judge’s decisions in the court below

9.  On 18 September 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  The applicant raised a number of grounds for judicial review, which the Judge summarized at [14] of the Form CALL‑1.

10.  Following a hearing on 2 July 2020 at which the applicant appeared before the Judge, the Judge refused leave for judicial review.  The reasons were set out in [14]‑[21] of the Form CALL‑1 as follows:

“14. On 18 September 2018 the Applicant filed another Form 86 in these proceedings for leave to apply for judicial review of Board’s Second Decision, and on this occasion he put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator took into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up‑to‑date COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry‑picking and putting weight on irrelevant COI in the consideration of his claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.

15. These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge.

16. 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.

17. 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.

18. Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his SCF 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.

19. In the Applicant’s case, the Board rejected his claim essentially on his failure to establish any real chance of him being arbitrarily deprived of his life under BOR 2 risk upon his return to Bangladesh. On the facts of the Applicant’s claim and in the light of the scope and threshold of a BOR 2 claim, there is simply no room for engaging the BOR 2 ground, and as found by both the Director and the Board, the Applicant has failed to identify from those additional facts and documents submitted by him that could in anyway advance his claim under the BOR 2 risk ground. As such 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.

20. Furthermore, the fact is that it has been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh that there is simply no justification to afford him with non‑refoulement protection in Hong Kong: TK v Jenkins & Anor [2013] 1 HKC 526. Up to now the Applicant has failed to put forward any reasonably arguable basis to challenge that finding of the Director, whose decision has been confirmed by the Board, and which the court in the previous proceedings has found to contain no error in law or in procedure.

21.  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.”

11.  On 5 October 2020, the applicant took out a summons in the Court of First Instance to seek an extension of time to appeal against the decision of the Judge.  In his supporting affirmation of the same date, the applicant deposed that he did not receive the Judge’s decision until 30 September 2020, and that he was unable to afford to hire a legal representative, but subsequently received some legal advice. 

12.  The Judge heard the summons on 3 March 2021.  In his decision dated 16 March 2021 ([2021] HKCFI 594) at [5], the Judge accepted that the applicant might have needed legal assistance to prepare his documents, and given the insubstantial delay, the Judge focused on the merits of the intended appeal.  At [6] the Judge noted that the applicant did not provide any proper or valid draft or proposed ground of appeal, or any particulars of errors in the decision, or why it may be reasonably argued that the decision was unfair or unreasonable.  The Judge did not see any reasonable prospect of success in the intended appeal, and dismissed the summons accordingly.

The renewed application before this Court

13.  On 12 April 2021, the applicant took out a summons in this Court seeking leave to appeal out of time against the decision of the Judge dated 1 September 2020 refusing leave to apply for judicial review.

14.  The applicant did not set out any proposed grounds of appeal at all in either his summons or his supporting affirmation of 12 April 2021.

15.  The applicant lodged written submissions on 22 June 2021.  Those submissions consist however mostly of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.

16.  At paragraph 2(1) of his submissions, the applicant stated that the Board erred in approaching the matter by simply trying to see whether it could find fault with the Director’s decision.  The applicant argued that the Board failed to scrutinize the Director’s decision and that it is the Board’s general practice to not question or find fault with the Director’s decision.  At paragraph 2(2) of his submissions, the applicant argued that the Board should have but did not consider country conditions.

17.  The applicant did not provide any details or particulars in support of his arguments or as to any specific errors allegedly made by the Judge.

Legal principles

18.  Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless an extension of time to appeal is granted.  In considering whether to extend time, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

19.  Even if the court does not accept that the applicant’s explanation for delay is reasonable, the court should still examine if he has merit in the intended appeal. 

20.  In assessing the merit of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non‑refoulement cases.  In particular, an appeal against the refusal of leave by 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 will 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 his decision was otherwise plainly wrong.  The Court of Appeal will 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 the appeal were a fresh application for judicial review.

Discussion

21.  In the present case, the applicant was late by 20 days.  As mentioned above, the Judge regarded the delay as insubstantial.  The crucial factor is therefore whether the intended appeal has any reasonable prospect of success.

22.  As mentioned earlier, the applicant did not either in his summons, affirmation or submissions provide any particulars in support of his appeal or as to any specific alleged errors in the Judge’s decision. General statements and assertions without particulars cannot be effective grounds to support a judicial review or an appeal from refusal of leave for 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.

23.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on BOR 2 risk because it concluded that his evidence consisted entirely of hearsay, documents that did not relate to him, or unsubstantiated allegations.  As such, the Board was unable to give any weight to his evidence.  Such a finding is within the province of the Board, and the court will not interfere with such evidential assessment unless there exist valid public law grounds for doing so. 

24.  Having considered the materials before us, we are of the view that the Judge’s observations are justified.  The applicant has failed to show any reasonably arguable grounds for judicial review.  The Judge was right to refuse leave for judicial review.  There is no reasonable prospect in the intended appeal against the decision of the Judge.

25.  For these reasons, the summons dated 12 April 2021 is dismissed.

[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2] 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 and its 1967 Protocol.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).