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CACV 61/2021
[2021] HKCA 1091
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 61 OF 2021
(ON APPEAL FROM HCAL 2463/2018)
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Before: Hon Barma JA and K Yeung J in Court
Date of Hearing: 26 July 2021
Date of Judgment: 17 August 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge C P Pang given on 4 February 2021 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 31 August 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 6 October 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Bangladesh. His immigration history and previous convictions have been summarized by the Board and reproduced by the judge at [2] of the CALL-1 Form. It is not necessary for us to repeat them here.
3. The applicant lodged a claim based on torture risk[1] which was dismissed by the Director on 14 May 2013 and the Board on 11 October 2013. He lodged a claim for non-refoulement protection on 21 October 2013.
4. The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the judge at [3] of the CALL-1 Form.
5. By a Notice of Decision dated 6 October 2017 (“the Director’s Decision”), the director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4].
6. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 8 June 2018, the Board dismissed the appeal on 31 August 2018 (“Board’s Decision”).
7. At [31] of the Board’s Decision, the Board considered that members of the opposing political party are unlikely to pursue the applicant after a decade from the events giving rise to his claim in 2002-2004. The Board further noted that nothing happened to him during the period between 13 August 2004 and 18 October 2004, when the applicant was in Pakistan. The Board held that the applicant was unlikely to be subject to any of the proscribed risks of harm. The Board was also satisfied at [36] that state protection would be available for the applicant and at [55] that internal relocation would be viable.
The judge’s decision
8. The applicant filed a Form 86 on 5 November 2018 which contained no ground for seeking relief.
9. In his affirmation in support of the leave application filed on 5 November 2018, the applicant exhibited the relevant documents including his marriage certificate and birth certificates of his two children. The applicant did not advance any ground for judicial review.
10. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
11. After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [23] of the CALL-1 Form:
“13. The relevant principles regarding non-refoulement claims have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, 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. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence, country of origin information, 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. When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court will examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.
15. In the present case, both the Director and the Board engaged in a joint endeavour with the applicant and considered all relevant criteria. They gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately. Taking into account all the relevant circumstances, they rejected the applicant’s claim based on their assessment of the risk of harm as well as their findings on the availability of state protection and viability of internal relocation.
16. As explained above, the assessments of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. This court will not interfere with their decisions unless there is a public law ground for the court to do so.
17. The applicant stated no grounds of the judicial review in Form 86. He mentioned nothing in the form or in the affirmation to suggest how the Board erred in the public law sense. Nor was there a challenge with regard to procedural regularity and fairness.
18. In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.
19. The applicant delayed in lodging the claim for protection after he first came to Hong Kong in May 2004 and even after he came again in October 2004. He only lodged his torture claim in September 2006 after he was arrested by the police for overstaying. His delay, although not determinative of the claim, was inconsistent with someone in genuine fear for one’s life and safety. The Board properly took this into account as adversely affecting the credibility of the claim. In any event, the Board found there is reasonable state protection and internal relocation is viable. It was entitled to come to these findings which would dissipate any perceived harm the applicant might have.
20. The applicant has been in Hong Kong since October 2004. The records show that the applicant has had ample and fair opportunity to present his case to the Director and the Board. The decisions of the Director and the Board are plainly fair and reasonable.
21. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness in their decisions.
22. For the reasons given, there is no prospect of success in the applicant’s intended application for judicial review.
Disposition
23. Accordingly, leave to apply for judicial review is refused.”
Grounds for appeal
12. In the Notice of Appeal filed on 17 February 2021 and the affirmation in support filed on the same day, the applicant stated that:
“the [judge] was wrong in law in holding that there was no state acquiescence or involvement.
the [judge] failed to provide detailed reason in support of this decision.”
13. In his skeleton submission lodged on 21 June 2021, the applicant submitted that:
(1) the Board failed to meet the high standard of fairness in that it had adopted a practice of not questioning the decisions of the Director, and had also failed to consider country of origin information; and
(2) the Board failed to act fairly.
14. The applicant agreed by a letter of 24 February 2021 that the appeal could be heard by two judges. We heard the appeal on 26 July 2021.
Discussion
15. So far as the Notice of Appeal is concerned, it is noted that in his application before the judge, the applicant did not put forward any ground for judicial review based on state acquiescence. The judge therefore did not (and could not be expected to) consider it. Further, the judge has given detailed reasons for his decision in [13] – [23] of the CALL‑1 Form contrary to the applicant’s other complaint. Thus, neither of the grounds raised in the Notice of Appeal has any merit.
16. As for the grounds raised in the skeleton submission, those grounds do not allege any error on the part of the judge and are therefore not valid grounds of appeal. This court has often stated that an appeal to the Court of Appeal is not a fresh application for judicial review, and that is necessary for an applicant to identify errors in the judge’s reasoning, and not simply make complaints against the primary decision maker.
17. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (AARIF BARMA) |
(KEITH YEUNG) |
| Justice of Appeal |
Judge of the Court of |
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First Instance |
The applicant appeared in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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