RE MOSTOFA

CACV 117/2020

[2020] HKCA 890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 117 OF 2020

(ON APPEAL FROM HCAL 1373/2018)

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J U D G M E N T

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

Introduction

1.  On 6 May 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 28 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 10 February 2017 rejecting the applicant’s non-refoulement claim.

2.  By a Notice of Appeal of 18 May 2020, the applicant appealed against the Judge’s decision. 

Background

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally in October 2013 and was arrested by police on 4 March 2014.  The applicant lodged a non-refoulement claim on 8 March 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 or supporters of the Awami League.  The factual background was succinctly summarized by the Judge in [2] – [6] of the Form CALL-1 ([2020] HKCFI 144).

5.  By a notice of decision dated 10 February 2017, the Director assessed the applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds were torture risk[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

6.  The applicant appealed to the Board against the Director’s decision.  The applicant attended an oral hearing on 25 April 2018.  On 28 June 2018 the Board dismissed the appeal. The Board found that the applicant’s evidence of the claim was vague and unsubstantiated, that there was no evidence of official involvement, that state protection would be available, and that the risk was localized and that internal relocation was viable.

Decision of the court below

7.  On 13 July 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision of 28 June 2018.  His grounds for seeking relief, as stated in the supporting affirmation for his Form 86 (and set out at [11] of the Judge’s decision), were:

(1)  procedural impropriety in failing to consider that the state must effect reforms and avenues of effective redress in the discharge of the government’s duty of due diligence;

(2)  procedural impropriety in failing to conduct a critical analysis of the relevant COI material or to provide any justification as to why those COI which supported their conclusion should be preferred;

(3)  procedural impropriety in their cherry picking of the COI in arriving at their decision;

(4)  procedural impropriety in their failure to take into account the concept of extended state acquiescence in assessing the Applicant’s claim;

(5)  procedural impropriety in failing to assess the Applicant’s claim under BOR 3 or CIDTP risk when he had suffered physical torture and threats from those AL members which caused him to flee from his home country;

(6)  error/misdirection in law in failing to consider the psychological harm on him as the assessment of harm was confined only to his physical injuries;

(7)  illegality/irrationality in taking into account irrelevant considerations of the fact that the Applicant was able to leave Bangladesh without incident, and failing to take into account relevant considerations such as why he was afraid to report to the police the threats made against him.

8.  Following a hearing at which the applicant appeared in person, on 6 May 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [17] of the Form CALL-1 ([2020] HKCFI 144, HCAL 1373/2018) as follows:

“ 12. These are however all just broad and vague assertions of the Applicant containing several pages of 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 did they fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or why was the concept of extended state acquiescence relevant to his claim when he never sought assistance from the police. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and I do not find any of them reasonably arguable for his intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, 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 14 – 29 of its decision with the benefit of hearing him in his evidence and answers to questions raised of his claim during the oral hearing of his appeal, and in the absence of any error of law or procedural unfairness in his process before the director or the Board or in their decisions being clearly and properly identified by the applicant with sufficient particularity, I do not find any reasonably arguable basis for him to challenge the findings of the Director or 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 18 May 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were that there was a failure to consider the real BOR 2 risk and BOR 3 risk that he would face upon refoulement, and that the Judge did not consider the applicant’s fear and the country of origin conditions.

10.  On the same day, the Applicant agreed in writing that the appeal could be processed by 2 judges.

11.  The applicant lodged his written skeleton submissions on 18 September 2020. In those submissions the applicant advanced the following arguments:

(1)  the Board and the Director failed to make sufficient inquiry into country of origin conditions and adopted a passive approach in contravention of the required high standards of fairness;

(2)  the Board and the Director erred by failing to take into account and/or give proper weight to relevant considerations and materials, in particular:

(a)  the applicant would face real risk from his enemies, i.e. the Awami League, and his life would be in danger if he were refouled;

(b)  the applicant’s severe mental distress;

(3)  the applicant’s claim is not a personal or private dispute, and the Board and the Director failed to assess his fear in light of his enemies continuing to look for him.

12.  However, in those submissions the applicant did not provide any details or particulars in support of his grounds of appeal or arguments.

Legal principles

13.  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

14.  The applicant did not in his Notice of Appeal or his submissions provide any particulars in support of his arguments.  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.

15.  The only grounds advanced by the applicant to reverse the Judge are those set out in his Notice of Appeal.  Those grounds are not tenable.  The Judge had considered the argument on assessment of COI materials and risk of harm at [12] and [13] of the CALL-1 Form.  The Judge rightly noted that these are primarily within the province of the Board (and the Director) and the applicable had not put forward valid effective public law ground to challenge the same.  It is not the court’s role to substitute itself for the Board.

16.  Having considered the grounds advanced by the applicant, we are of the view that the applicant failed to pinpoint any error in the Judge’s decision.

17.  Further, in the present case, the Board rejected the applicant’s claim for non-refoulement protection based on its findings that the applicant’s evidence of the claim was not reliable, that there was no evidence of official involvement, that state protection would be available, and that the risk was localized and 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.  On the materials before the court, the Judge rightly noted that there was no such ground.

18.  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.  The Judge is plainly right to refuse leave. 

19.  There is no reasonably arguable ground to challenge the decision of the Judge.

20.  For these reasons, we dismiss the appeal.