MOLLA MD SHANTO v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 385/2020

[2021] HKCA 176

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 385 OF 2020

(ON APPEAL FROM HCAL NO 1962 OF 2018)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.  On 4 August 2020, Deputy High Court Judge Bruno Chan (“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 12 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 May 2018 rejecting the applicant’s non-refoulement claim.

2.  On 17 August 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 11 February 2017 and surrendered to the Immigration Department on 13 March 2017. The applicant lodged a non-refoulement claim on 13 April 2018. 

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by people from the Awami League, as he was a member of the Bangladesh National Party. The factual background was succinctly summarized by the Judge in [2] – [6] of the Form CALL-1 ([2020] HKCFI 1718).

5.  By notice of decision dated 31 May 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  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 29 August 2018, during which he was interviewed by the Board.  The Board found at paragraphs 22 to 24 of its decision that the applicant was a dishonest witness because he refused to answer a number of questions from the Board, and gave illogical explanations on other questions.  Moreover, because the applicant had suffered only minor injuries in the incidents alleged, the Board found that there was no real risk of harm in the event of refoulement.  The Board also concluded that internal relocation was viable.  Therefore, the Board dismissed the applicant’s appeal on 12 September 2018 on all the applicable grounds.

Decision of the court below

7.  On 18 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  The applicant’s grounds for seeking relief were set out at [11] of the Judge’s reasons for refusing leave below.

8.  Following a hearing on 19 May 2020 at which the applicant attended in person before the Judge, on 4 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [11] – [17] of the Form CALL-1 ([2020] HKCFI 1718, HCAL 1962/2018) as follows:

“11. On 18 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director and adjudicator reached their decisions wrongly in assessing his non-refoulement claim and were unreasonable;

(2) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his non-refoulement claim as well as his appeal;

(3) that the Director failed to appreciate or give proper weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his claim;

(4) that the Director failed to take into account that the Applicant was tortured at the behest of the state law enforcement agencies that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(5) that the Director failed to consider or give enough weight to those listed COI which supported the Applicant’s aversions that the police in his home country would not be able to protect;

(6) that the director failed to attain the high standard of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law; and

(7) that the Director failed to consider the corruption and incompetency of the administration in his country is still a very serious problem of which various human rights organization reports had stated testament to the Applicant’s assertions which is a clear case of unfair attitude shown by the Director itself enough to render his decision void.

12. These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unreasonable or unfair, or how did the adjudicator fail to give him sufficient time or opportunity to provide his evidence in support of his claim or appeal, or what relevancy was state acquiescence relevant to his claim, or how did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or in what way was the Director’s decision unreasonable in the scope of public law. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge.

13. 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.

14. 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 21 – 24 of its decision in the absence of any evidence, clarification or explanation from him as to the many discrepancies and contradictions in his claims despite being invited to do so during his appeal hearing, 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.

15. Furthermore, the fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16. 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.

17. 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.”

Appeal to this Court

9.  On 17 August 2020, the applicant filed his Notice of Appeal against the Judge’s decision, in which he reiterated Grounds (2) and (3), as well as that part of Ground (7) alleging an unfair attitude by the Director, that he had already advanced before the Judge, as set out at [11] of the Judge’s reasons above.  He also seemed to state that Ground (3) applied to the decisions of the Board and the Judge as well.

10.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be heard by 2 judges.

11.  Pursuant to the Court’s directions of 17 December 2020, the applicant lodged his written submissions on appeal on 5 January 2021. Those submissions consist largely of general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case, save that in paragraph 5 he stated that the Board acted in a procedurally unfair manner by failing to properly assess his credibility.

12.  Nevertheless, the applicant has not provided any detail or particulars as to how the Board failed to properly assess his credibility, let alone any particulars in support of his other arguments.  Nor did he have anything to add when he appeared before this court.

Legal principles

13.  In assessing the merit of the appeal, we have considered the legal principles set out by this Court in 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 purposes 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.  An appellate court should not examine the decision the Board afresh as if it were a fresh application for judicial review. 

Discussion

14.  As mentioned earlier, the applicant did not in his Notice of Appeal or submissions 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.  He did not have anything to add when he appeared before this court.

15.  As we would 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.

16.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection mainly based on its adverse finding on the applicant’s credibility (particularly on the unlikelihood of his ability as a low-tier member to access the leaders of his party), and on the Board’s finding that there was no real risk of harm to the applicant if he were to return to Bangladesh because he had only suffered minor injuries in the free-for-all incidents alleged. The Board also concluded that internal relocation was viable. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

17.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge was plainly right to refuse leave. 

Order

18.  For the above reasons, this appeal is dismissed.