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CACV 115/2023, [2023] HKCA 798
On Appeal from [2023] HKCFI 488
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 115 OF 2023
(ON APPEAL FROM HCAL 296 OF 2019)
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| RE |
FAKIR MD MURAD ALI alias MD MURAD ALI FAKIR |
Applicant |
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| Before: |
Hon Kwan VP and Lisa Wong J in Court |
| Date of Hearing: |
27 June 2023 |
| Date of Judgment: |
5 July 2023 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
THE APPEAL
1. This is an appeal against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 3 April 2023 (“Judge’s Decision”), refusing the applicant leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decisions of the Director of Immigration (“Director”) given on 25 October 2017 (“Director’s Decision”) and the Torture Claims Appeal Board (“Board”) given on 21 January 2019 (“Board’s Decision”), both of which rejected the applicant’s non-refoulement claim (“NRF Claim”).
BACKGROUND
Overstay in Hong Kong and lodgment of NRF Claim
2. The applicant entered Hong Kong illegally on 29 September 2015 and was arrested by the police on the same date.
3. The applicant raised the NRF Claim by written representation on 3 October 2015. He subsequently completed and lodged a non-refoulement claim form dated 8 September 2017 (“NCF”).
4. The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 43, is a fear of being harmed or killed by supporters of the Awami League (“AL”) as he supported the rival Bangladesh Nationalist Party (“BNP”) and refused to join the AL.
5. The circumstances giving rise to such alleged fear have been set out in detail in paragraphs 7.11 to 7.18 of the Director’s Decision and in gist in [2] to [3] of the Judge’s Decision embodied in the Form CALL-1 dated 3 April 2023, [2023] HKCFI 488 (“Form CALL-1”).
Director’s Decision
6. In processing the NRF Claim, in addition to the NCF, the Director’s representative(s) conducted a screening interview with the applicant on 16 October 2017. The applicant then had legal advice and representation from the Duty Lawyer Service.
7. The Director found the NRF Claim unsubstantiated under all the applicable grounds for non-refoulement protection namely, torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].
Appeal to Board and Board’s Decision
8. The applicant appealed against the Director’s Decision to the Board.
9. The Board conducted a rehearing of the NRF Claim on 31 August 2018, at which the applicant testified before, and answered questions by, the Board through a Bengali/English interpreter.
10. The Board dismissed the appeal on all 4 grounds for non-refoulement protection for the following reasons:
(1) The injuries allegedly suffered by the applicant had not attained the requisite minimum level of severity.
(2) The applicant was an unlikely target for elimination by the AL. Only opposition leaders and activists were targeted in the incidents of disappearance, torture and unlawful killing in the rivalry between the 2 political parties. The applicant’s role in the BNP was not leading, nor was he an activist, as he had not taken part in any activities of the BNP since the general election in 2014.
(3) There is no evidence that the police was searching for the applicant.
Application for leave for judicial review and Judge’s Decision
11. By a Notice of Application for Leave to Apply for Judicial Review (Form 86) issued under HCAL 296/2019 on 1 February 2019, the applicant sought leave to apply for judicial review of the Director’s Decision as well as the Board’s Decision, without putting down any proposed ground for judicial review.
12. In the supporting affirmation filed on the same day, the applicant raised a number of grounds for judicial review, which the Judge summarised at [9] of the Form CALL-1 as follows:
“… in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:
(1) That the immigration officer and the Adjudicator have no practical knowledge of the situation in Bangladesh in order to have a proper understanding of the risk of harm in the Applicant’s claim as to why he cannot return to his home country;
(2) That the interpreter for the Applicant’s appeal hearing was not a good interpreter and did not give a proper and accurate interpretation of his claim to the Board;
(3) That the Adjudicator asked the Applicant’s questions that were not related to his claim.”
13. Following a hearing on 22 September 2022 at which the applicant appeared in person before the Judge, the Judge refused to grant leave to apply for judicial review on 3 April 2023. In gist, the Judge held that the applicant’s grounds are just vague and bare assertions without any details, particulars or elaboration. The Judge found no error of law or procedural unfairness in the decisions of the Director and the Board, nor any failure on their parts to apply the requisite high standards of fairness in the consideration and assessment of the NRF Claim.
GROUNDS OF APPEAL
14. By the notice of appeal filed herein on 17 April 2023, the applicant appealed against the Judge’s Decision on the ground that the decision is “not good” because the Judge did not find any error.
15. By the written submission lodged on 30 May 2023, the applicant reiterated the factual background and procedural history of the NRF Claim. He further contended that he had submitted many documents but the immigration officer did not consider his problem.
16. The appeal was heard on 27 June 2023. The applicant was absent. We shall therefore determine the appeal on paper with reference to the written material available to us.
DISCUSSION
Court of First Instance’s role in judicial review in non-refoulement claims
17. The primary decision-makers in a claim for non-refoulement protection are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeals against refusal of leave for judicial review in non-refoulement claim
18. An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will not normally entertain any new arguments that are fact sensitive and should have been raised in the court below. The Court of Appeal shall interfere if and only if the judge had erred in law or failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
Application of the relevant principles in the present case
19. The ground put forward by the applicant in his notice of appeal is nothing but a bare assertion without identifying any particular errors that the Judge had allegedly failed to find.
20. The applicant’s contention in his written submission that the Director had not considered his problem was not raised below in the applicant’s application for leave to apply for judicial review and should for this reason alone be dismissed.
21. In any event, this complaint has no substance. By the 20-page long notice of decision dated 25 October 2017 (which embodied, and communicated to the applicant, the Director’s Decision), the Director had fully set out the basis of the NRF Claim and given detailed and clear explanations for the rejecting the same.
22. In short, the applicant has failed to identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
23. In any case, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that both are in order.
DISPOSITION
24. For the above reasons, we see no basis for interfering with the Judge’s Decision. The appeal is accordingly dismissed.
(Susan Kwan)
Vice President of the
Court of Appeal
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(Lisa Wong)
Judge of the Court of
First Instance
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The applicant acted in person and was absent
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a 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, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the Hong Kong Bill of Rights Ordinance.
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