RE MAHFUZUL HAQUE

CACV 273/2020

[2021] HKCA 86

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2020

(ON APPEAL FROM HCAL NO 1971 of 2018)

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J U D G M E N T

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Hon Chu JA giving the Judgment of the Court:

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 16 July 2020[1] dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 22 June 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 17 February 2017 rejecting his non-refoulement claim.

2.  The applicant has consented to his appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of Bangladesh.  He first entered Hong Kong in June 1994 as a visitor by means of a passport that did not bear his true identity.  He was repatriated on 29 September 1997.  In May 2004, he again entered Hong Kong as a visitor by using a passport that did not bear his true identity.  He was repatriated on 15 January 2007.  On 5 September 2014, he arrived in Hong Kong from the Mainland and was refused entry.  He was repatriated to the Mainland.  He later entered Hong Kong illegally and was arrested by the police on 2 November 2016.   

4.  On 25 November 2016, the applicant raised a claim for non-refoulement protection based on fear of being harmed or killed by his former business associate (“BM”) arising out of a business dispute.  His claim was set out in detail in the Director’s decision at [7] and the Board’s decision at [52] to [127], and summarised by the Judge in [3] of the Form CALL-1. 

5.  In gist, the applicant claims that BM is associated with the Awami League (“AL”) while he himself is a member of the rivalry political party, the Bangladesh Nationalist Party (“BNP”).  His case is that he and BM fell out in around end of 2013, which was a time when Bangladesh was undergoing a period of political turmoil, and the applicant had taken part in political activities organised by BNP.  AL retained its ruling position after the 2014 general election.  In order to get rid of the applicant, BM instigated AL members to assault him but the attempts were unsuccessful.  BM also instigated the police to arrest the applicant and he had to go into hiding. Fearing for his safety, the applicant left his country and eventually sneaked into Hong Kong from the Mainland in October 2016.  The applicant said that after his departure, the police had threatened his family to disclose his whereabouts and they are still looking for him.

6.  By his decision dated 17 February 2017, the Director rejected the applicant’s claim having regard to the torture risk[2], persecution risk[3], BOR 2 risk[4] and BOR 3 risk[5] grounds. 

7.  On 2 March 2017, the applicant appealed the Director’s decision to the Board.  The Board heard the appeal at an oral hearing held on 11 June 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 22 June 2018, the Board dismissed the appeal.  Primarily, the Board found the applicant’s evidence and case not credible in light of the many inconsistencies between his non-refoulement claim form and his oral evidence given at the appeal hearing. The Board also doubted the existence of BM and his claim that he had a business dispute.  The Board did not accept the applicant was a member of the BNP or was involved in any political activities.  The Board also did not accept the applicant was wanted by the Bangladeshi police or security apparatus for any crime or security threat.  The Board found no real risk of the applicant experiencing any type of harm or ill-treatment as claimed that would entitle him to non-refoulement protection.   

8.  On 19 September 2018, the applicant filed a Form 86 to apply for leave to judicially review the Board’s decision.  He relied on the following grounds for seeking relief:

(1)  The hearing bundle was provided shortly before the hearing before the Board, and he did not have sufficient time to prepare his case.

(2)  The hearing bundle was in English, and he did not have language assistance.

(3)  He was confused at the appeal hearing.

(4)  The aboard had relied on information and materials that were not recognised officially, and were hearsay and outdated, as a result of which its assessment was speculative.

9.  The Judge heard the application at an oral hearing held on 4 October 2019.  For reasons set out in [11] to [18] of the Form CALL-1, the Judge refused to give leave and dismissed the application:

“11.  The applicant appeared before me and he confirmed that he was free to advance his case before the immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him to understand the hearing bundle and the Board’s Decision.

12.  I put the Board’s findings to him and asked him if he had any comments on them. He said that he had no comments.

13.  It is quite obvious that whilst the Director had not challenged his evidence on the facts and assessed his claimed risk was low, the Board went further to challenge the veracity of his evidence on the facts. The Board rejected his evidence, which means that he has no factual basis in support of his claim.

14.  The Court of Appeal in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14 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.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held that lack of language assistance is not a ground for judicial review.

16.  The Court of Appeal in Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17.  The grounds above are irrelevant. They cannot stand in light of the above authorities. Ground (4) is only his opinion without any evidence in support of it.

18.  The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.”

10.  By a Notice of Appeal filed on 22 July 2020, the applicant appealed the Judge’s order to this court.  He gave the following as his grounds of appeal:

(1)  Failure to consider the grounds he submitted in support of his application and that he would face real risk upon refoulement.

(2)  Failure to consider the country of origin condition information (“COI”) in that he would face genuine risk if he were to return to his country.

(3)  Failure to consider his claim under the BOR risk ground.

11.  The applicant had filed a written submission in which he advanced the following arguments:

(1)  The Director and the Board failed to comply with their duties to make sufficient inquiries into COI and adopted a passive approach in contravention of the high standard of fairness set out in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187.

(2)  The Director and the Board failed to take into account and/or give proper weight to the relevant considerations and materials, hence their decisions were illegal.  Specifically, they failed to give due regard to the fact that:

(a)  he would face real risk upon refoulement because of his enemy and his life would be in danger; and

(b)  he must have been placed in severe mental illness as a result of which he would face difficulty caused by his enemy upon refoulement.

(3)  His claim was not personal or private in nature. He had to fled for his life.  His enemy would hunt him down no matter where he hides.  There was no clear finding on why he would not be subjected to persecution upon refoulement.  The Director and the Board failed to assess his fear as his enemies continued to look for him.

12.  We heard the appeal on 14 January 2021.  At the hearing, the applicant said he had nothing to add orally.

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The primary decision makers in relation to a claim for non-refoulement are the Director and the Board.  They assess the evidence and are the finders of fact, which may include findings in respect of the applicant’s credibility, the risk of harm, the availability of state protection, and the viability of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as well as relevant information regarding the country of origin.

15.  The role of the court in a judicial review is not to provide a further avenue of appeal.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  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 and/or the process by which the decision was made.

16.  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.

17.  In light of the established legal principles set out above, we are of the view that the grounds of appeal and the arguments put forward by the applicant do not constitute viable grounds of appeal.  Firstly, Evaluation of risk of harm are matters for the primary decision makers and not for the court.  The applicant’s arguments that he would be in danger if he were to return to his country is irrelevant both as a ground for judicial review and as a ground of appeal against the Judge’s decision.  

18.  Secondly, in an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the applicant has made criticisms of the Director and the Board, but he has not pointed to any error in the Judge’s reasons for decision. 

19.  In any event, we have reviewed the Board’s decisions and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in the Board’s decision.  There is no ground to interfere with the Board’s findings and decision.  Likewise, there is no basis to disturb the Judge’s decision.  Accordingly, we dismiss the appeal.