RE ALI SIKANDAR

CACV 394/2019

[2020] HKCA 135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 394 OF 2019

(ON APPEAL FROM HCAL NO. 2592 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1.  This is an appeal against the decision of Deputy High Court Judge K. W. Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

1.2.  This appeal was scheduled to be heard on 21 January 2020.  Despite the directions contained in the letter from the High Court to the applicant dated 9 October 2019, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly the hearing was vacated and we will deal with this appeal on paper.

2)  Background

2.1.  The applicant is a national of Bangladesh.  He entered Hong Kong as a visitor but he overstayed.  He raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by the Awami League because he was indebted to some of the leaders of the party and also because he was a member of the rival political party.

2.2.  The details of the applicant’s claim have been summarized by the Judge at [3] to [4] of the CALL‑1 Form.

3)  The Director’s Decision     

3.  The Director of Immigration decided against the applicant’s claim on 16 November 2017.  The decision (‘the Director’s Decision’) covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1.  The applicant appealed against the Director’s Decision to the Board.  After a hearing held on 27 September 2018, the Board dismissed the applicant’s appeal against the Director’s decision on 8 November 2018.

4.2.  The Board found that the applicant’s evidence was unreliable.  He came to Hong Kong in search for business opportunities.  He did not seek for non‑refoulement protection until 11 months after his arrival.  He came to Hong Kong to avoid his creditors.

5)  Decision of the Judge

5.1.  The applicant complained before the Judge that the Board misdirected itself, applied incorrect standard of proof, relied on outdated country of origin information, cherry picked information, did not consider gross violations of human rights in assessing BOR 3, and other standard pro forma points.

5.2.  The Judge held that the applicant appeared before him and confirmed that he had no complaint against the Immigration Officer and the Board.  Their decisions have been explained to him.  The applicant considered that he had a fair hearing before the Board.  The Judge held that most of the applicant’s complaints were his opinions only without evidential support.  The Judge held that points that were not mentioned before the Board failed as they had not been raised perviously.

6)  Grounds of appeal

6)  In summary, the applicant in his notice of appeal and supporting affirmation stated that the Judge was wrong in holding there was no state acquiescence and failed to provide detailed reasons.   

7)  Our view

7.1.  We will repeat the approach of this Court in dealing with cases of this nature :

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 the 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 their decisions.

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.  In the determination for 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 otherwise plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2.  In our view there are no merits in the applicant’s appeal.  Consideration of evidential matters such as state acquiescence is the task of the Board.  The Judge had provided his reasons of refusal in his decision.

7.3.  We see no error in the Judge’s decision.  Accordingly the appeal is dismissed.