RE MD AZIZUL ISLAM

CACV 194/2019

[2019] HKCA 993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2019

(ON APPEAL FROM HCAL 722 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL‑1 dated 12 April 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 933. The intended judicial review is against the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 20 April 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 31 May 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 20 March 2007 and was arrested by the police on 21 March 2007.  He lodged a torture claim on 5 April 2007 and was released on recognizance.  On 10 November 2010, he was arrested, and subsequently convicted and imprisoned for taking employment while being a person who remained in Hong Kong without the authority of the Director.  Upon his release on 11 July 2011, a removal order was issued against him on 22 July 2011.  His torture claim was refused on 13 February 2012 and the subsequent petition was also dismissed on 16 March 2012.  On 23 December 2013, he lodged a non‑refoulement claim. 

3.  The details of the applicant’s claim and his personal background were set out in paragraph 9 of the Director’s Decision, and paragraphs 4‑5 of the Board’s Decision.

4.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by the associates of the late Atiar, a known killer and terrorist who was a member of the Bangladesh Nationalist Party (“BNP”) young wing and had the support from the high level of the BNP.  The applicant is a supporter of the Awami League (“AL”).  In around 2002, Atiar was offended by the applicant because during Atiar’s campaign in the applicant’s village for the BNP, the applicant told the villagers to vote for the AL.  In 2006, Atiar was killed in a police crossfire in the applicant’s village.  Since then, Atiar’s associates started threatening the applicant and accused him of assisting the police to catch Atiar.  

The Director’s Decision and the Board’s Decision

5.  In the Director’s Decision, the Director assessed the torture risk,^[1] the BOR 3 risk,^[2] the persecution risk^[3] and the BOR 2 risk.^[4]  The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected the applicant’s claim.

6.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 23 November 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

7.  The Board found that the applicant was not genuine in his claim.  Taking the applicant’s claim to its highest, there were two occasions when the associates of Atiar made verbal threats to his family, but the timing of the said threats was vague and was based on hearsay.  The alleged constant visits of the associates to his family were fabricated and unsubstantiated.  Further, the claim that the associates of Atiar would blame him simply because Atiar’s body was found to be in the vicinity of the applicant’s village was far‑fetched.  As a result, the Board concluded that the applicant would not face a real risk of harm if he were to return to Bangladesh.  In addition, on a separate ground, the Board found that internal relocation was available to the applicant (paragraph 50 of the Board’s Decision) and that the government or authorities of Bangladesh had no interest in him (paragraph 51 of the Board’s Decision).   

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 25 April 2018 seeking leave to apply for judicial review against the Board’s Decision.  The proposed grounds of review were summarized at paragraph 11 of the Deputy Judge’s Decision:

“ 11. On 25 April 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in it he put forward the following grounds for his intended challenge:

(1) misdirection in law in that the adjudicator misdirected himself on the law by taking into account that the applicant and/or the other applicants 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.”

9.  The Deputy Judge heard the applicant’s leave application on 14 September 2018.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 12‑17 of the Deputy Judge’s Decision:

“12.  These are however all very 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.

13.  The only other complaint which the applicant appeared to have made with any elaboration was in his supporting affirmation of the same date when he claimed that the hearing bundle for his appeal before the Board was provided to him only a few days before his appeal hearing 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.

14.  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 rather than NCF as he claimed, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all being already 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.

15.  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 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, there is simply no justification to afford him with non‑refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

16.  In the premises and having proceeded to consider 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.

17.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Grounds of appeal

10.  The applicant filed a Notice of Appeal dated 23 April 2019 to appeal the Deputy Judge’s Decision.  He set out the following two grounds of appeal in his supporting affirmation filed on the same date:

(1)   The Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement (“Ground 1”).

(2)   The Deputy Judge failed to provide detailed reason in support of his decision (“Ground 2”).

Discussion

11.  At this hearing, the applicant appeared before us in person and confirmed that he had nothing to add to the written materials already lodged.

12.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

13.  First, 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 the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

14.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  In light of the above, it is incumbent on the applicant to point out the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision. 

17.  Insofar as Ground 1 is concerned, the Deputy Judge did not in fact make any ruling as to the absence or otherwise of state acquiescence or involvement.  He was not tasked to assess whether there was any state acquiescence, which was within the province of the primary decision makers.  In any event, state acquiescence or involvement had been fully considered by the Director and the Board.  They found that the Bangladesh government or authorities had no interest in the applicant and that state protection is available to the applicant (paragraphs 18‑23 of the Director’s Decision; paragraph 51 of the Board’s Decision). 

18.  The Deputy Judge had in his decision carefully examined the Board’s Decision and the Director’s Decision and concluded that their decisions were not vitiated by any errors of law or not tainted with any procedural unfairness; nor did they fail to apply the high standards of fairness required for assessing applicant’s non‑refoulement claim.

19.  Other than making a general and vague complaint that the Deputy Judge was wrong, the applicant has not in this appeal identified specifically any errors committed by the Deputy Judge in his reasons.  There are no merits in this ground of appeal.

20.  As to Ground 2, it is clear from the Deputy Judge’s Decision that he has provided sufficiently detailed reasons for his conclusion (paragraphs 12‑17 of the Deputy Judge’s Decision as quoted above).  This ground of appeal is also entirely unmeritorious.

21.  In his skeleton argument dated 29 July 2019, for Ground 1, the applicant quoted some passages from ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision‑maker in the determination of a non‑refoulement claim.  He further submitted, as an alternative ground, that the Board failed to scrutinize the Director’s Decision and failed to consider matters such as the country conditions of the applicant’s country of origin.

22.  For Ground 2, the applicant cited Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Ltd v Stock Exchange of Hong Kong Ltd [1999] 2 HKLRD 243, and Rowse v Secretary for the Civil Service [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly”.

23.  These however are related to complaints directed at the Director and the Board’s Decisions, which had been addressed by the Deputy Judge in his reasons with reference to the proposed grounds of judicial review.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.  These authorities therefore do not assist the applicant in this appeal.

24.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law or procedural impropriety in those decisions.  There is no basis to disturb the Deputy Judge’s decision.

Disposition

25.  For the reasons given above, the applicant’s appeal has no merits and is accordingly dismissed.