RE CHOWDHURY ARIF

CACV 462/2020

[2021] HKCA 1077

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 462 OF 2020

(ON APPEAL FROM HCAL NO. 837 of 2018)

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JUDGMENT

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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 Bruno Chan (“the Judge”) given on 1 September 2020[1] refusing to give him leave to apply for judicial review. The intended judicial review is against the decision of the Director of Immigration (“the Director”) dated 28 April 2017 rejecting his non-refoulement claim and the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 16 April 2018 dismissing his appeal against the Director’s decision.

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

3.  The applicant is a Bangladeshi national aged 45. He entered Hong Kong illegally and was arrested by the police on 3 February 2016. He later raised a non-refoulement claim based on fear of being harmed or killed by members of the Awami League (“AL”) party because he was a member of the Bangladesh People’s Party (“BNP”).  His claim was set out in detail in the Director’s decision at [8] and the Board’s decision at [24] to [33], and summarised by the Judge in [1] to [4] of the Form CALL-1. 

4.  In gist, the applicant claims that he joined BNP in 2008 and had attended its rallies and meetings.  Beginning from 2009, he was harassed and threatened by AL supporters.  In March 2009, he and his fellow BNP supporters were attacked by a group of AL supporters when they were having a meeting in their office.  He was badly injured in the incident and had to be hospitalised.  After the attack, he continued to receive threats.  In another attack by the AL supporters in 2015, one of his fellow BNP supporters was killed.  Fearing for his safety, the applicant departed for mainland China from where he sneaked into Hong Kong.     

5.  By his decision dated 28 April 2017, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 3risk^[4] and BOR 2 risk^[5] grounds.   

6.  The applicant appealed the Director’s decision to the Board.  The Board heard his appeal at an oral hearing held on 26 February 2018 during which the applicant gave evidence and answered questions from the Board.  By its decision dated 16 April 2018, the Board dismissed the appeal.  In summary, the Board did not accept the applicant’s case that he was a member of BNP or that he was injured as a result of being involved in altercations with SL supporters.  The Board also rejected the medical documentation he produced in view of the fact that the name and age of the person named in the documents were different from the applicant’s name and age, and the date of injury also did not tally with the applicant’s claim.  The Board found there was no basis to believe the applicant would face real risk of harm in his home country, and concluded that he failed to make out a case for non-refoulement protection under all applicable grounds. 

7.  On 14 May 2018, the applicant filed a Form 86 together with an affirmation to apply for leave to judicially review the decisions of the Director and the Board.  He did not give any ground for seeking relief in either of the documents.

8.  The applicant did not request an oral hearing. The Judge dealt with the application on the paper.  For reasons set out in [10] to [14] of the Form CALL-1, the Judge refused to give leave to apply for judicial review and dismissed the application:

“10. 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.

11. 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 34 – 54 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

12. 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 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.

13. 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.

14. 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.”

9.  The applicant filed the notice of appeal on 14 September 2020, in which he contended that the Judge erred in refusing to give leave for applying for judicial review on the following grounds:

(1)  The Board decided that he was not a credible witness.  However, he had complained to the authorities about the lack of clarity and transparency of the hearing bundle.  The Judge dismissed his claims, finding that he was only confused about the procedure and that the interpreter had gone through the bundle with him.  This is an overstatement because the interpreter only interpreted those part of the bundle that the Board referred him to, and he did not know about the rest of the bundle.  It was not a fair hearing because the bundle was not read to him before he hearing, Duty Lawyer service had refused to give him further assistance and he can barely read English.

(2)  He had no means of finding out whether the interpreter had correctly interpreting his words.  A lot of the words were lost in translation.  The Board was wrong in deciding that he lacked credibility.

10.  In his written submission dated 9 June 2021, the applicant made a variety of points as follows:

(1)  The outcome of his legal aid application is pending. 

(2)  He has no alternative remedy available and has to judicially review the decisions of the Director and the Board.  He believes his grounds for reviewing the decision(s) are reasonable and reasonably arguable.

(3)  The appeal has significant public importance, particularly on he standard and approach to assessment of evidence and credibility of non-refoulement claims.

(4)  The police in Bangladesh kill people cruelly in the name of Islamic crime.  People are often beaten and tortured by the police.  The situation is very dangerous but the government fails to regulate the legal system.

(5)  The covid situation in Bangladesh is very serious with high death tolls and insufficient medical facilities.

(6)  AL is the ruling party and is very powerful. His political opponents, the AL supporters, will be able to single him out.  He cannot relocate to other parts of the country safely.   

(7)  He came to Hong Kong because it is a safe place.  However, after he came here, his dream and life were ruined.  There is no hope for justice in Hong Kong.

(8)  He had submitted eight grounds (as listed in [13]) with the leave application made on 14 May 2018.

(9)  A thorough and careful consideration of the relevant updated country of origin information (COI) is required to objectively assess the risk he faces if he were to return to his home country.  The Board failed to consider the COI information past July 2016, and did not give reasons why outdated COI material was preferred to more recent information.  This is important to the assessment of availability of relocation options. 

(10)  The Board failed to meet the high standard of fairness.  The Court of First Instance and the Court of Appeal failed to discharge the duty to comprehensively consider the lawfulness or fairness of the decision-making process.   

11.  We heard the appeal on 20 July 2021.  At the hearing, the applicant said he had lots of problems in his country, and while he is safe in Hong Kong, his life would be in danger if he were to go back.  He also said that the AL is still in power, and he will return to his country when there is a change in the government.  He further stated that he would like the Director to consider his case afresh.

12.  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].

13.  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.

14.  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.

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 this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

16.  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. 

17.  Firstly, while the applicant had in the notice of appeal and written submission put forward many criticisms of the Board’s decision and argued that the Judge’s decision was wrong to refuse him leave to apply for judicial review, none of these grounds or arguments was raised in the application in the Court of First Instance.  It is established law that it is not permissible for an appellant to advance on appeal new grounds that had not been argued in the court below. 

18.  In this regard, [13] of the written submission is wrong in saying that the applicant had submitted eight grounds in his Form 86 dated 14 May 2018.  As mentioned above, neither the Form 86 nor the supporting affirmation had provided any ground for seeking relief.     

19.  Secondly, some of the new matters now raised by the applicant are irrelevant, such as the covid situation in Bangladesh, and the complaint about use of outdated COI information when the Board had not made any finding on availability of internal relocation options.  The complaint against the Court of Appeal is also misplaced since this Court has not yet given a decision on his appeal. 

20.  Thirdly, as to the challenge to the Board’s adverse finding on his credibility, evaluation of evidence and risk of harm are matters for the primary decision makers and not for the court.  Even if we were to allow the applicant to rely on the new grounds in the notice of appeal, we do not find them sufficient to challenge the Board’s finding.  Significantly, the applicant did not complain to the Board that he could not understand the content of the hearing bundle.

21.  Fourthly, 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 specific errors in the reasons and decision of the judge.  In the present case, the applicant had provided no ground for seeking relief in either Form 86 or his supporting affirmation. Notwithstanding this, the Judge had examined the decisions of the Director and Board, and concluded there was no reasonable ground to interfere with the Board’s assessment of the applicant’s evidence and credibility, and there was also no proper basis to grant leave to apply for judicial review. 

22.  Fifthly, the matters stated by the applicant at the appeal hearing do not amount to proper grounds of appeal.  Assessment of risks and harm is a matter for the Director and the Board.  If the applicant has justifications and wishes a reconsideration of his claim by the Director, he will have to apply directly to the Director.

23.  We have examined the decisions of the Director and the Board.  We agree with the Judge that the Board had made detailed and careful analysis of the applicant’s evidence, and there is no reasonable ground to disturb its finding on credibility and assessment of risks.  We also do not find any merits in the matters advanced by the applicant to challenge the Judge’s decision.       

24.  For the above reasons, the applicant’s appeal against the Judge’s decision has no merits.  Accordingly, we dismiss the appeal.