RE MADBER NASIR

CACV 264/2022

[2023] HKCA 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 264 OF 2022

(ON APPEAL FROM HCAL 907/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”) given on 24 June 2022 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 1 March 2019 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 September 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 16 December 2013 and was arrested on the same day.  Thereafter, he lodged a non-refoulement claim on 18 December 2013.

3.  The applicant’s claim was based on a fear of being harmed or killed by one Romiz Kha and his followers from the Awami League.  The details of the applicant’s claim have been summarised by the Judge at [4] and [5] of the Judge’s decision (“the CALL-1 Form”)[1].   

4.  By a Notice of Decision dated 8 September 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk^[2], the BOR 3 risk^[3], the persecution risk^[4] and the torture risk^[5].

5.  The applicant appealed to the Board.  After a hearing on 13 August 2018, the Board dismissed the appeal on 1 March 2019 by the Board’s Decision.  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board found that the applicant’s primary claims of risk of harm caused by Romiz Kha were baseless and unsupported by evidence.  In any event, the Board found that state protection as well as viable options of internal relocation were available to the applicant.

The Judge’s decision

6.  The applicant filed a Form 86 on 3 April 2019 seeking to judicially review the Board’s Decision.

7.  In the applicant’s supporting affirmation, he set out his grounds, which were summarised by the Judge at [13] of the CALL-1 Form, as follows:

“(1) Procedural impropriety: failure to properly apply para 2 of the UN committee against Torture General Comment No.2; failure to conduct sufficient inquiry into the relevant country of origin conditions; failure to give reasons for BOR3 risk rejection; failure to re-consider his dangerous situation if he returned to Bangladesh and that his claim is a political matter, not a private matter;

(2) Error/misdirection in law: failure to take into account the psychological strain and threats to him and there was no evidence to conclude that he would not be at risk of being tortured and/or subjected to BOR3 risk upon refoulement.”

8.  After summarising the facts and background of the case, giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [14] to [20] of the CALL-1 Form:

“14.   The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13(1) …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.’

17.  The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. His grounds in support of his application are, at most, bare allegations or his comments without any evidence to support.

18.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.  There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

20.  I therefore refuse to grant leave for the applicant to apply for judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal dated 7 July 2022, the applicant essentially repeated the grounds put before the Judge in the court below.

10.  The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

11.  The applicant lodged written submissions on 18 July 2022, which contained no more than repetitions of his submissions and grounds as stated in his supporting affirmation to the Form 86 and in the Notice of Appeal.

Discussion

12.  The applicant has in his Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has wholly failed to do so.

13.  In his application in the court below, the applicant made numerous complaints against the Board, essentially alleging that it was unreasonable and/or unfair in reaching its Decision. 

14.  However, as this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board. Generalised allegations of unfairness or unreasonableness that are not particularised will not suffice. The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.  The Judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was clearly correct to do so.

15.  As we have noted, the applicant advanced no viable grounds of appeal against the Judge’s decision.

16.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.