RE NUR HOSSAIN

CACV 469/2020

[2021] HKCA 848

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 469 OF 2020

(ON APPEAL FROM HCAL 2114/2018)

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JUDGMENT

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

1.  On 24 August 2020, Deputy High Court Judge Bruno Chan (“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 4 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 27 December 2017 rejecting the applicant’s non-refoulement claim.

2.  On 14 September 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 in May 2008.  He was arrested by police on 17 November 2008.  He then lodged a torture claim on 22 November 2008.  The Director rejected the torture claim on 6 February 2014.  The applicant appealed to the Board against the rejection of his torture claim on 19 February 2014.  That appeal was subsequently rejected by the Board and he did not pursue further.

4.  On 12 June 2017, the applicant was arrested for illegal remaining and taking up employment in Hong Kong, for which he was convicted and sentenced on 15 June 2017 to 15 months’ imprisonment.

5.  The applicant’s non-refoulement claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by his creditor Abu Tahir, his son Sohag or their followers for failing to repay a loan.  The factual background was set out at paragraphs 14 – 34 of the Board’s decision.

6.  By notice of decision dated 27 December 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds except torture risk[1] and determined it against them.  The remaining applicable grounds are BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

7.  The applicant appealed to the Board against the Director’s decision dated 27 December 2017.  An oral hearing was held on 13 July 2018, during which the applicant was interviewed by the Board.  The Board found that there was no evidence that Sohag had ever threatened to harm or kill the applicant, or that Abu Tahir had asked Bangladeshi police to threaten him.  The Board also found that Abu Tahir had never done anything to harm the applicant.

8.  Thus the Board found that there was no real risk of harm in the event of refoulement.  The Board also considered that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 4 September 2018 on all the applicable grounds except torture risk.

Decision of the court below

9.  On 4 October 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision dated 4 September 2018.  In his Form 86, the applicant stated a number of grounds for judicial review, which the Judge summarized at [11] of the Form CALL-1 ([2020] HKCFI 2059, HCAL 2114/2018).  In addition, in his Form 86 and supporting affirmation the applicant complained that the Board hearing bundle was provided to him only a few days before the Board hearing and the documents in the bundle were in English.

10.  Following a hearing on 23 June 2020 at which the applicant appeared in person before the Judge, the Judge refused on 24 August 2020 to grant leave to apply for judicial review. The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 ([2020] HKCFI 2059, HCAL 2114/2018) as follows:

“ 11. On 4 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator wrongly 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.

12. 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, 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 him, I do not find any of these grounds reasonably arguable for his intended challenge.

13. 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.

14. 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.

15. 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.

16. In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526

17. 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.”

Appeal to this Court

11.  In his Notice of Appeal against the Judge’s decision, the applicant’s stated grounds of appeal are that the Judge was wrong in law in holding that there was no state acquiescence or involvement, that the Judge failed to provide detailed reasons for decision, and that the Judge ignored country of origin information.

12.  The applicant lodged his written submissions on appeal on 7 May 2021.  Those submissions consist mostly of general statements of law quoted from cases without identifying how they specifically relate to or apply in this case. 

13.  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 he alleged that the general practice of the Board is not to 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.

14.  However, the applicant did not provide any details or particulars in support of his grounds of appeal.  Nor did he pinpoint any specific errors by the Board or the Judge.

Legal principles

15.  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.  And

(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

16.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal or as to any specific errors in 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.

17.  The applicant’s grounds of appeal as regards the decision of the Judge are clearly without merit.  The Judge did not make any holding or finding as to state acquiescence or involvement because it was not an issue raised below.  Further, there is no factual and evidential basis to meet the threshold discussed in Re Esmerez Maria Nieva Gelito [2018] HKCA 611 for such issue to be raised. 

18.  The Judge provided sufficiently detailed reasons for his decision in the CALL-1 Form. 

19.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its finding that there was no harm done to the applicant in Bangladesh and that there is no real risk of harm in the event of refoulement.  The Board also considered that internal relocation was viable.  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.  In this case, there are no such valid grounds to do so.

20.  It is clear from the Board’s decision that it had assessed the applicant’s claim by way of rehearing and considered country conditions.  The applicant’s complaints in his written submissions that the Board did not exercise its judgment independently are not supported by any credible basis.

21.  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.  There is no basis for us to reverse the decision of the Judge.

22.  For these reasons, this appeal is dismissed.