RE KARIM MD REJAUL

CACV 85/2018

[2018] HKCA 498

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 85 OF 2018

(ON APPEAL FROM HCAL NO. 403 of 2017)

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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 Woodcock (“the Judge”) given on 23 March 2018 refusing him leave to apply for judicial review.  The intended judicial review is against: (1) the decisions of the Director of Immigration (“the Director”) dated 29 December 2015 and 23 February 2017 rejecting his non-refoulement claim; and (2) the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 12 June 2017 dismissing the applicant’s appeal against the Director’s decisions.  The applicant consents to the appeal being heard by a two judges.

2.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally and was arrested by the police on 21 April 2014.  On 23 April 2014, he lodged a non-refoulement claim based on his fear that, if he returned to Bangladesh, he would be harmed or killed by supporters of a political party, Awami League (“AL”), because he belonged to the opposite Bangladesh Nationalist Party (“BNP”) and had seriously wounded a member of AL. 

3.  The applicant’s case is that he joined the BNP in 1994 and was an active member.  One day in the first half of 2010, in the heat of a political argument with an AL member called Shahidul, the applicant attacked and seriously wounded him.  As Shahidul was in critical condition, the applicant left his home village and went to Chasrail, which was 60-70 km away from his home, to stay at the place of a friend’s uncle.  In the next three years, the applicant stayed and worked as a driver in Chasrail and nothing uneventful happened.  Then on a date which the applicant cannot recall, his fellow drivers told him that four men from his home village had come to look for him.  The applicant thought that they must be AL people and felt that his life was in danger.  He therefore left for his maternal aunt’s home in Nijpara, which was 30-35 km from his home village.  One day in January 2014 when the applicant was in a hair salon in his aunt’s village, three AL members from his home village arrived on a bike armed with hockey sticks.  They assaulted him and also vandalised the salon.  With the help of the salon owner, the applicant managed to escape.  He sustained injuries to his knee, leg and back and was hospitalised for one night.  He did not make a report to the police because AL was in power and he did not think the police would help him.  Some 15-20 days later, the applicant’s family arranged for him to fly from Dhaka to Guangzhou, where he travelled to Shenzhen and eventually entered Hong Kong illegally. 

4.  By a Notice of Decision dated 29 December 2015, the Director rejected the applicant’s claim having regard to the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].  Primarily, the Director assessed the level of harm against him by AL members to be low, having regard to the account given by the applicant and the low intensity and frequency of the claimed threat and harm.  The Director also considered that the level of risk would be lowered or negated by the availability of reasonable state protection and internal relocation options.  The Director further found the dispute with the AL members to be personal in nature, and noted there was no evidence to show that the applicant was targeted by the Bangladeshi government, or that the threat or attack on the applicant was at the instigation, of, or consented to, or acquiesced in by government or public official.       

5.  By letter dated 20 January 2017, the Director invited the applicant to provide additional information relevant to an assessment of the BOR 2 risk[4]. Not having received a response from the applicant, the Director proceeded to consider the applicant’s claim on the ground of BOR 2 risk based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 23 February 2017, the Director decided against the applicant.

6.  The Board heard the applicant’s appeal against the Director’s decisions on 10 March 2017.  The applicant elected to answer questions from the Board.  By its decision dated 12 June 2017, the Board dismissed the appeal.  In summary, the Board found the applicant’s claim did not satisfy the legal requirements under the four applicable grounds.  Separately, the Board also found the applicant’s case incredible and unreliable in a number of respects.             

7.  The applicant filed his Form 86 on 14 July 2017 seeking leave to apply for judicial review against the Board’s decision.  The applicant also filed a supporting affirmation on the same day.  No grounds for judicial review were stated in either of the documents.

8.  On 14 September 2017, the application was set down for an oral hearing to take place on 6 December 2017.  By a memorandum filed on 25 October 2017, the Director of Legal Aid gave notice that the applicant had applied for legal aid.  This gave rise to a 42-day stay of the proceedings.[5] For reasons given in [2] to [5] of the CALL-1 Form, the Judge lifted the stay and proceeded with the hearing of the application as scheduled.  On 23 March 2018, the Judge dismissed the application for the reasons stated in [16] to [18] of the CALL-1 Form:

“16. As I said above, there are no grounds in the applicant’s affirmation but I have nevertheless, considered with rigourous examination and anxious scrutiny the adjudicator’s decision. During the oral hearing, the applicant submitted that his documents were not considered properly by the adjudicator. The fact that he was badly beaten and injured was not properly taken into account. The fact was his life was still in danger if he returned to Bangladesh; the risk was high and was ignored. He submitted that the general elections were to be held very soon and if the BNP would come into power he would go home anyway.

17. I do know from the adjudicator’s decision that the applicant told him he has no medical report, hospital report or any documents because they had been lost. There is no other reference to documents from the applicant.

18. I do not find any errors of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision is not Wednesbury unreasonable.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

9.  In the Notice of Appeal dated 3 April 2018, the applicant did not set out any ground of appeal.  He merely stated that there was an appeal against the decision of the Director of Legal Aid and he would like his case to be adjourned until it was over.  **At the hearing before us, the applicant had not asked for an adjournment.

10.  In his letter to the Court dated 10 April 2018, the applicant made the following points:

(1)  His life will be in danger if he returns to his home country.  He fears harm from the AL people because, as a member of BNP, he had been seriously injured when he was in Bangladesh.

(2)  There are four cases against him in Bangladesh.  There is also a warrant of arrest against him, and police can arrest him any time.  In support of this point, he attached a case list dated 9 April 2018 signed by an Advocate of the Court of Rajbari.

(3)  In 2018 he expressed a desire to return to his home country.  After knowing this, AL people wounded his brother with iron rods and vandalised his home.  They also threatened to kill him if he were to return to Bangladesh.  As 2018 is election year in Bangladesh, it is a dangerous time to go back.

(4)  In connection with a contusion is his right big toe, he is due to receive his third anti-tetanus toxoid immunisation injection from the hospital on 19 March 2019.  In support of this point, he attached a sick leave certificate and an immunisation record.  

11.  The applicant also lodged a written submission on 12 July 2018, in which he repeated the account he gave to the Director to support his non-refoulement claim. 

12.  This Court has repeatedly held that judicial review does not operate as a rehearing of the claim.  The Court does not assume the role of the Director and the Board as the primary decision maker.  Its concern is the legality and rationality of the decisions being challenged and the propriety and fairness of the procedure by which the decisions are reached.  Hence, it is not a ground of appeal to merely repeat the facts underlying the claim or assert that there are risks of being harmed or killed.  Further, given that it is not this Court’s function to reassess the merits of the applicant’s claim, it is not open to the applicant to advance in this appeal new facts that had not been raised before the Director, the Board or the Judge.  We will not have regard to the applicant’s claim that his brother had been attacked, his home had been vandalised and the threat against him uttered on the occasion of the attack.  

13.  As to the applicant being wanted in Bangladesh in connection with pending cases, this cannot be a ground for non-refoulement protection.  As the Board observed in [10] and [11] of its decision, the desire to avoid the due process of the law does not entitle a claimant to non-refoulement protection.

14.  The fact that the applicant is scheduled to receive an immunisation injection in March 2019 cannot be a ground of appeal.     

15.  Having reviewed the decisions of the Director and the Board, we agree with the Judge that there is no error of law or procedure in their decisions or unfairness in the process by which their decisions were reached.  The Judge is correct in concluding that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused. 

16.  Accordingly, we dismiss the appeal.