RE MIAH KABIR

CACV 218/2020

[2020] HKCA 1029

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 218 OF 2020

(ON APPEAL FROM HCAL 2977/2018)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 16 June 2020, Deputy High Court Judge K W Lung (“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 21 December 2018.  In that decision, the Board rejected the applicant’s non-refoulement claim.

2.  On 24 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 25 January 2016 and was arrested by police on 2 February 2016.  The applicant lodged a non-refoulement claim on 6 February 2016. 

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 of the Awami League, because he is a member of a rival political party, the Bangladesh Nationalist Party (“BNP”).  The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 ([2020] HKCFI 1199).

5.  By Notice of Decision dated 7 February 2018, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and determined it against them.  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 12 September 2018, during which the applicant was interviewed by the Board.  The Board found that the applicant was not a reliable witness and did not accept his evidence as to the attacks and threats against him and charges brought against him.  Thus, the Board found that there was no real risk of harm if he were to return to Bangladesh. 

7.  Therefore, the Board dismissed the applicant’s appeal on 21 December 2018 on all the applicable grounds.

Decision of the court below

8.  On 27 December 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  However, the applicant did not provide any grounds for seeking relief in his Form 86 or supporting affirmation.

9.  After consideration of the documents only, on 16 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [16] of the Form CALL-1 ([2020] HKCFI 1199, HCAL 2977/2018) as follows:

“ 13.  The Board did not accept the applicant’s factual evidence. He therefore has no factual basis in support of his claim.

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusion on the facts of the case.

16.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

10.  On 24 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  The applicant’s grounds of appeal are that:

(1)  the Judge has wrongly exercised his decision in concluding that the Board had not erred;

(2)  the Board’s appeal hearing bundle was not fully translated or interpreted to the applicant prior to or during the Board hearing;

(3)  the applicant’s testimony was wrongly interpreted or translated;

(4)  the Board was wrong in deciding that the applicant lacked credibility.

11.  On the same date, the applicant agreed in writing that the appeal could be heard by 2 judges.

12.  Pursuant to this Court’s directions of 5 October 2020, the applicant lodged his written submissions on appeal on 23 October 2020.  In these submissions, he raised some arguments concerning the process before the Board which were not set out in his Notice of Appeal.  Those arguments were not canvassed in the court below and he did not explain why such arguments were only raised at this stage.

13.  Moreover, the applicant did not provide any details or particulars to support of his arguments concerning the process before the Board.  

Legal principles

14.  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

15.  In this case, the applicant did not set out any ground for seeking relief in the documents he filed in the Court of First Instance.  In such circumstances, there is no basis for him to assert the Judge was wrong in finding that he failed to show that the Board was in error.

16.  As stated in principle (2) at [14] above, in our judicial system, an appeal is not the occasion for running arguments which could and should have been raised but not raised before the judge. 

17.  The applicant did not give any explanation for not raising the grounds of challenge regarding the Board’s decision at the court below.  On its face, all those challenges could and should have been raised below.  Whilst there is discretion for entertaining fresh points to be taken on appeal, the absence of such explanation militates against the exercise of such discretion in favour of the applicant.

18.  Our appellate system is not designed to allow an appellant to treat an appeal as if he was arguing the case for the first time.  As stated in principles (2) and (3) at [14] above, this Court will focus on the decision of the judge in considering the merit of an appeal.  We should not entertain an appeal as if we were hearing a fresh application for judicial review.

19.  Further, the arguments now advanced by the applicant to challenge the Board’s decision are general assertions without particulars.  As such they cannot constitute 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.

20.  The applicant’s arguments as to insufficient language assistance and legal representation are untenable.  According to his Non-refoulement Claim Form and the records of his screening interview before the immigration officer, he was legally represented and provided with language assistance up until the time his claim was rejected by the Director.  As this Court has repeatedly held, the high standard of fairness required by law does not entail an interpretation service being made available whenever the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

21.  Some of the arguments raised in the submissions of the applicant are confounding.  For example, at paragraphs 15 to 22 (at p.3-5) of those submissions, the applicant said the Board disregarded the certification of his membership of BNP.  At paragraph 18 (p.4) there was a supposed cross reference to paragraph 61 of the Board’s decision.

22.  In fact, there was no such evidence before the Board.  Also at paragraph 43 of its decision, the Board accepted that the applicant was an ordinary member of BNP.  Paragraph 61 of the Board’s decision address general principle concerning BOR 2 risk and had nothing to do with the applicant’s membership at BNP.

23.  At p.5 of the submissions, following paragraph 22, the applicant had another section starting with a new paragraph 14 under the heading “Procedural unfairness: mischaracterization of evidence and/or flawed approach to determining plausibility”. In that section at paragraphs 15 and 18 (at p.5-6), he referred to his detention in “a rudimentary Bengali village jail”.  This is again puzzling as it was not his evidence before the Board that he had been detained.

24.  Actually, at paragraph 5 of those submissions, he referred to the decision by the Board on 21 December 2018 (with Mr Wesley Wong as the adjudicator).  The actual Board decision we are concerned with is that of 21 December 2018 by Mr Siu Chak-yu.

25.  It seems that the submissions were prepared by someone for another case.  

26.  In light of their obvious lack of merit and absence of explanation for not running the new grounds below, we are not minded to entertain the same in this appeal.

27.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge is plainly right to refuse leave. 

28.  For these reasons, we dismiss the appeal.