RE GOLAM HAKKANI

CACV 179/2021

[2021] HKCA 1555

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 179 OF 2021

(ON APPEAL FROM HCAL NO 699 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 9 April 2021 refusing to grant leave to the applicant for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑refoulement Claims Petition Office (“Board”) dated 20 April 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 11 August 2016 and 21 August 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a Bangladeshi national.  He was arrested by the police in Hong Kong on 2 July 2013 for being an illegal immigrant and was referred to the Immigration Department on 3 July 2013.  He lodged his non‑refoulement claim on 19 March 2014. 

3.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by supporters of the Awami League, due to his prior business ties to supporters of the Bangladesh Nationalist Party, as well as his refusal to accede to demands from Awami League supporters for extortion money or for him to participate in illegal drug trafficking.  The factual background of his claim was summarized at [11] of the Board’s decision.

4.  By notices of decision dated 11 August 2016 and 21 August 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  The former covered BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] while the latter covered BOR 2 risk.[4]

5.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 9 March 2018, during which the applicant answered questions from the Board.  The Board had serious concerns as to the applicant’s credibility and the reliability of his evidence, due to his factual claims and evidence being evasive, vague, confusing, changing, internally inconsistent and unpersuasive. Despite the Board raising with the applicant a number of inconsistencies in his evidence, he was unable to provide satisfactory explanations.  As a result, the Board did not accept the applicant was a credible witness and rejected his factual claims.  The Board did not accept that the applicant was a business owner, or that he was or was perceived as a BNP member or supporter, or that he had ever participated in any BNP meetings, rallies or activities, or that he had been beaten or otherwise harmed by Awami League people.  The Board found that there was no real risk of harm in the event of refoulement, and dismissed the applicant’s appeal on 20 April 2018 in relation to all the applicable grounds.

Decision of the court below

6.  On 23 April 2018, the applicant sought leave from the Court of First Instance for judicial review against the Board’s decision, but did not raise any grounds for judicial review in his Form 86 or supporting affirmation. However, the Judge noted at [10] of the Form CALL‑1 ([2021] HKCFI 961, HCAL 699/2018) that the applicant raised a number of grounds in his written submissions, as follows:

“ (a) Ground 1: that the Adjudicator was unreasonable in making speculative findings with regard to the assessment of risk;

(b) Ground 2: that the Adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor; and

(c) Ground 3: that the Adjudicator made mistake of fact and/or failed to take a relevant factor, namely that the Applicant’s risk of harm emanates from his political opinion generally.”

7.  Following consideration of the documents only, on 9 April 2021 the Judge refused leave for judicial review.  The core reasons were set out by the Judge at [11] and [15]‑[19] of the Form CALL‑1 ([2021] HKCFI 961, HCAL 699/2018) as follows:

“ 11. However, upon close examination of the skeleton submissions, all of these complains of the Applicant appear to me to be something just copied from those used or applicable to a totally different case of another applicant from Bangladesh, as they referred to various facts said to have been mentioned by the Adjudicator but simply do not correspond to those actually stated in the Board’s decision, nor are they factually accurate or relevant to the asserted bases of the Applicant’s claim even on his own case. There are many examples.

…

15. As such I do not find any of these grounds or complaints of the Applicant arguable at all for his intended application, and in the absence of any error of law or irrationality 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 for his intended challenge either.

16. 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.

17. 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 12‑83 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.

18. 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.

19.  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.”

Appeal to this Court

8.  On 20 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In summary, his stated grounds of appeal are that:

(1)  the Judge wrongly concluded that the Board had not erred;

(2)  the Board hearing bundle was not fully translated and was not read back to the applicant; with little or no language or legal assistance, it was unfair and detrimental to expect him to be prepared for the Board hearing; and

(3)  the applicant’s testimony was mistranslated or wrongly interpreted by the interpreter at the Board hearing.

9.  On the same day that he filed the Notice of Appeal, the applicant consented in writing for the appeal to be disposed of on paper without an oral hearing.

10.  The applicant lodged his written submissions for the appeal on 9 June 2021.  In those submissions, he referred to country conditions in Bangladesh, including extra‑judicial killings by police, police impunity, the severity of the COVID‑19 pandemic in Bangladesh, the ability of the Awami League to locate him anywhere in the country, and the impossibility of internal relocation.

11.  The applicant argued that the Board failed to research and inquire into up‑to‑date COI, by arguing that the Board failed to consider COI from after July 2016 and failed to give proper weight to relevant COI or gave too much weight to irrelevant COI.  The applicant also argued that the Board failed to assess availability of state protection or whether there was a consistent pattern of gross and mass human rights violations in Bangladesh. 

12.  In addition, the applicant submitted that the Board took into account irrelevant considerations or incorrect or inaccurate facts, applied the incorrect standard of proof, and that there was procedural impropriety or unfairness due to the Board’s failure to call psychological evidence and also due to lack of or insufficient legal representation.

13.  The applicant also submitted that the court failed to discharge its duty to comprehensively consider the lawfulness or fairness of decision‑making.  However, the applicant did not provide any details as to how the Judge’s decision was deficient in that regard.

14.  The applicant did not provide any details or particulars in support of his grounds of appeal and arguments (other than alleged dates of COI considered by the Board), or as to any specific errors by the Judge.

Legal principles

15.  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.  Although 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 matters 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 will 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 his decision 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 the appeal were a fresh application for judicial review.

Discussion

16.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions provide any particulars in support of his grounds of appeal, 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 or an appeal from the refusal of leave for 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.

17.  As we will only examine the Judge’s decision in light of the grounds advanced by the applicant to reverse the Judge, and as there appear to be no such grounds that point to any error by the Judge, the appeal should be dismissed.

18.  In the present case, the Board rejected the applicant’s claim for non‑refoulement protection based on its adverse finding on his credibility. As such, the Board found that there was no real risk of harm in the event of refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments in the absence of any valid public law grounds. 

19.  As the Board’s decision turned on the applicant’s credibility (which he did not address in his submissions), it was unnecessary for the Board to consider COI, and it did not do so.  In the circumstances, the related arguments in the applicant’s submissions are irrelevant.

20.  As to the alleged lack of legal and language assistance at the Board hearing, it was not a ground relied upon in the court below.  In any event, the applicant has failed to give any particulars as to where or how the Board fell into error or were unfair or unreasonable as a result.  Without such details, this argument is untenable.

21.  The applicant was legally represented and provided with language assistance on his claim before the Director.  As this Court has repeatedly held, the high standard of fairness required by law does not entail legal or interpretation service being made available at any time the applicant desires: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Lopchan Subash [2018] HKCA 37; 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.

22.  Also, the applicant has not explained why psychological evidence would be necessary or relevant for his claim.  The argument that there was unfairness or impropriety in failing to call such evidence is without merit.

23.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified and that there is no reasonably arguable ground for judicial review of the decision of the Board.

24.  For these reasons, this appeal is dismissed.

[1] 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).

[2] 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.

[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[4] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).