RE HALDER USUB

CACV 534/2021

[2022] HKCA 332

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 534 OF 2021

(ON APPEAL FROM HCAL 2062 OF 2018)

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 19 November 2021 (“Judge’s Decision”), refusing to grant the applicant leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 14 September 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“Claim”) by a notice of decision dated 11 August 2017 (“Director’s Decision”).

Basis and allegations in support of Claim

2.  The basis of the Claim made by the applicant, a national of the Bangladesh, is a fear of being harmed or even killed by harmed or killed by the members of the Awami League (“AL”) because his father refused to step down as the regional president/chairman of the Bangladesh National Party (“BNP”) in their home district.

3.  The circumstances giving rise to such fear have been set out in paragraphs 8 to 26 of the Director’s Decision; paragraphs 8 to 29 of the Board’s Decision and in gist in [2] to [4] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 3449 (“Form CALL-1”).

4.  Briefly:

(1)  The applicant’s father (“Father”) was the regional president/ chairman of the BNP in the Munshiganhe District.   

(2)  Under Father’s influence, the applicant became a BNP member at a young age.

(3)  They together with other BNP supporters often came into conflicts with rival AL supporters.  The latter would make threats or use violence against the former in order to force them to quit the BNP.

(4)  In late 2008, after hearing that one of his fellow BNP members had been murdered by AL supporters, Father became fearful for his life.  He fled to Natore to take refute with a relative there.

(5)  Thereafter, the AL supporters switched target to the applicant.

(6)  The applicant joined Father in Natore later in 2009. 

(7)  They lived in Natore for the next three years without any mishap.

(8)  Nevertheless, the applicant was still concerned that eventually the AL people would locate him.

(9)  He therefore left Bangladesh on 21 December 2012 for China.

, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

Illegal entry into Hong Kong and lodgment of Claim

5.  The applicant sneaked into Hong Kong from Mainland China illegally.  He was arrested on 26 December 2012.

6.  On 7 March 2014, he raised the Claim by written representation.

Director’s Decision

7.  After considering the information provided by the applicant in his non-refoulement claim form dated 4 July 2017 and at the screening interview on 4 August 2017, during which time the applicant had representation from the Duty Lawyer Service, the Director found the Claim unsubstantiated under any of the grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4]. 

8.  In short, the Director assessed the risk of harm to the applicant from the AL on his return to Bangladesh to be low and further found that reasonable state protection and internal relocation options would be available to negate or reduce any such perceived risk.

Appeal to Board and Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.

10.  After a rehearing of the Claim on 11 June 2018, at which the applicant was present to testify and answer the Board’s question through an interpreter, the Board dismissed the appeal on all applicable grounds for non-refoulement protection. 

11.  In summary,the Board did not accept the credibility of the Claim because of the applicant’s inability to answer the Board’s questions concerning the Claim, in particular, and his lack of knowledge of the BNP.  The applicant failed to substantiate the Claim and to demonstrate that there was a genuine risk of harm against him by the AL upon his return to Bangladesh.

Application for leave for judicial review and Judge’s Decision

12.  By the notice of application for leave to apply for judicial review (“Form 86”) issued under HCAL 2062/2018 on 27 September 2018 and the accompanying affirmation, the applicant applied leave for judicial review of the Board’s Decision on the grounds summarised by the Judge in [9] of the Form:

(1)     that the Board erred by failing to maintain high standard of fairness by not holding an oral hearing to allow the Applicant an opportunity to put forward his case;

(2)     that the Board failed to apply the minimum standard of procedural fairness required in its decision-making process; and

(3)     that the Board failed to take into consideration when making its decision that the Applicant was not legally represented and therefore had insufficient legal knowledge which could jeopardize his representation in the appeal process, and that it also failed to inform the Applicant that he could complain.

After a hearing in open court, the Judge refused leave for judicial review for the reasons in [10] to [16] of the Form CALL-1:

“10. These are however just broad and vague assertions of the Applicant containing several pages of key words and phrases as well as general legal principles 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 how the Board had failed to apply high standards of fairness in assessing his non-refoulement claim or appeal, while his assertion that the Board did not hold any oral hearing for his appeal is simply factually wrong when it is plain from the record and the Board’s decision that it did hold an oral hearing on 11 June 2018 for his appeal during which the Applicant was invited to give oral evidence and to answer various questions regarding his claim with the assistance of an interpreter but that it was the Applicant who declined to give further oral evidence or to answer questions from the Adjudicator for the Board.

11. As such there is simply no basis or merits in any of these complaints of the Applicant, and in the absence of any error of law or irrationality 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 for his intended challenge.

12. 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.

13. In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 21 – 38 of its decision in the absence of any reliable or credible evidence form the Applicant during his appeal hearing, 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.

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

15. 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.

16. 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.””

Appeal to Court of Appeal - grounds of appeal and submission

14.  The applicant appealed to the Court of Appeal by notice of appeal filed herein on 30 January 2021 which stated the following grounds: that he would face hardship if he should return to Bangladesh (“Ground1”); and that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay new and outdated cases (“Ground 2”). Neither ground had been raised before the Judge.

15.  On 30 December 2021, the applicant lodged written submission.

16.  In purported support of Ground 1, he referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, exparte Doody [1994] 1 AC 531; and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

17.  In purported support of Ground 2, he referred to The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374; Pearl Securities Ltd v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for the Civil Service [2008] 5 HKLRD 217 to show that a decision-maker is under a constitutional duty to act fairly and to follow minimum standards of procedural fairness in the decision-making process

18.  The applicant appeared in person at the hearing of the appeal on 21 February 2022.  He had nothing to add to his notice of appeal and written submission.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

19.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

20.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

Ground 1

21.  As summarised above, the Claim failed on the facts at both stages of the Unified Screening Mechanism.  The questions whether the applicant would be at risk of life or torture if he is refouled to the Bangladesh and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant’s much-repeated bare assertion that he would face hardship if he should return to Bangladesh is inconsistent with the findings of both the Director and the Board.  The applicant has not advanced any ground for judicial review that indicates any errors of law, procedural unfairness or irrationality on the part of the Board in reaching the negative findings of fact against him.

Ground 2

22.  As for Ground 2, the applicant has not identified what unofficial or hearsay news or outdated cases that the Board had improperly relied on and in what respects the Board had made “groundless speculations”.

23.  Turning to the written submission, there was no attempt by the applicant to elaborate on whether and, if so, how the legal principles he cited had not been honoured in the processing of the Claim.

24.  In short, the applicant did not in the Form 86 or the accompanying affirmation point to any or any arguable error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and leave was rightly dismissed.  Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

25.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

24.                                     For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.