RE MIAH MOHAMMAD SAHIN

CACV 224/2020

[2020] HKCA 982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 224 OF 2020

(ON APPEAL FROM HCAL 1691/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 17 June 2020, Deputy High Court Judge K W Lung (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 7 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 23 January 2017 rejecting the applicant’s non-refoulement claim.

2.  On 29 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Bangladeshi national.  He arrived in Hong Kong on 17 July 2014 and was arrested by police on the same day.  The applicant was referred to the Immigration Department on 20 July 2014 and lodged a non-refoulement claim on 22 July 2014.

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members of the Awami League Party, because he supported a rival political party, the Bangladesh National Party (“BNP”).  The factual background was succinctly summarized by the Judge in [4] – [5] of the Form CALL-1 ([2020] HKCFI 1208).

5.  By notice of decision dated 23 January 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 13 June 2018, during which the applicant was interviewed by the Board. 

7.  On his own evidence, the applicant was able to remain living in his own home without incident for approximately one year, from mid-2013 to May 2014, after the last attack on him.  The applicant was a low-level supporter of the BNP, and had ceased all involvement in political activities since mid-2013. 

8.  In light of those facts, the Board considered it unlikely that those who had previously targeted the applicant would show any interest in him now, and the Board found that there was no real risk of harm in the event that he is returned to Bangladesh. The Board further found that if there was any risk, it was of a localized nature and that internal relocation was viable.

9.  Therefore, the Board dismissed the applicant’s appeal on 7 August 2018 on all the applicable grounds.

Decision of the court below

10.  On 21 August 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  However, the applicant did not provide any grounds in his Form 86 or affirmation of the same date.  In his other affirmation filed on 8 February 2019, he attached Further Submission.  Whilst some grounds were set out in that document, it appears that they were related to another case as the specific information set out in the same did not bear any correlation with the Board’s decision, see in particular paras 12, 14, 15, 17 to 22 of that document. 

11.  The hearing for the judicial review leave application was scheduled for 3 January 2020.  However, the applicant did not attend and the Judge proceeded to consider the application on paper.  After consideration of the documents only, on 17 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [13] – [15] of the Form CALL-1 ([2020] HKCFI 1208, HCAL 1691/2018) as follows:

“ 13. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal 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.

14. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

15.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to this Court

12.  On 29 June 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  The applicant’s grounds of appeal are that:

(1)  the Judge wrongly exercised his decision in concluding that the Board had not erred;

(2)  the Board decided that the applicant is not a credible witness;

(3)  the Judge dismissed his claims due to the applicant’s confusion in his memory and inability to answer questions properly; the Board’s appeal hearing bundle was not fully translated or interpreted to the applicant prior to or during the Board hearing; and he was not represented by the Duty Lawyer Service before the Board;

(4)  the applicant’s testimony was wrongly interpreted or translated, as a result the Board decided that the applicant lacked credibility.

13.  On the same day that he filed his Notice of Appeal, the applicant agreed in writing that the appeal could be heard by 2 judges.

14.  This Court directed on 5 October 2020 that the appeal be listed for hearing on 9 December 2020 and that applicant must lodge his written submissions by 30 October 2020, failing which the hearing date would be vacated and the appeal would be processed on papers based on materials already lodged.

15.  The applicant failed to lodge any submissions as directed.  Accordingly, the hearing date of 9 December 2020 was vacated and this appeal is processed on paper without an oral hearing.

Legal principles

16.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 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 the decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before the judge.  In the determination of 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 was otherwise plainly wrong.

(3)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

17.  The applicant did not in his Notice of Appeal provide any particulars in support of his arguments, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

18.  Moreover, it is clear that the grounds of appeal are misconceived.  The Board did not find that the applicant incredible and the Judge made no finding as to the applicant’s memory, ability to answer questions or as to whether he was confused. 

19.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on his own evidence.  Its assessment was that there was no real risk of harm to the applicant if he were to return to Bangladesh. 

20.  The Board further found that if there was any risk, it was of a localized nature and that internal relocation was viable. 

21.  Such conclusions are within the province of the Board, and we cannot see any public law ground warranting the court’s disturbance of such assessments.

22.  The applicant’s grounds of appeal as to insufficient language assistance and legal representation are untenable.  According to his Non-refoulement Claim Form and the records of his screening interview before the immigration officer, he was legally represented and provided with language assistance up until the time his claim was rejected by the Director. 

23.  As this Court (differently constituted) has repeatedly held, the high standard of fairness required by law would not entail an interpretation service being made available at any time the applicant desires: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658; and Din Shamas v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2019] HKCA 1403. 

24.  As for the applicant’s argument that he was denied sufficient representation from the Duty Lawyer Service, it has also been held that high standard of fairness does not demand that legal representation being made available all the time to a non-refoulement claimant: Re Akram Raja Noman [2019] HKCA 1361.

25.  Having considered the materials before us, we are of the view that the Judge was plainly right to refuse leave.  There is no reasonably arguable ground to challenge the decision of the Judge.

26.  For these reasons, this appeal is dismissed.