CACV 366/2018
[2019] HKCA 311
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 366 OF 2018
(ON APPEAL FROM HCAL NO 981 OF 2017)
________________________
| BETWEEN |
| | CHY MD FAYEJ AHAMAD | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON‑REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
________________________
Before: Hon Kwan JA, Mimmie Chan J and Lisa Wong J in Court
Date of Hearing: 11 March 2019
Date of Judgment: 15 March 2019
________________________
J U D G M E N T
________________________
Hon Kwan JA (giving the judgment of the court):
1. This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 3 August 2018 ([2018] HKCFI 1552). By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.
2. The applicant is a national of Bangladesh who entered Hong Kong illegally on 15 April 2014 and was arrested by the police on 19 April 2014. After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 21 April 2014[1] on the basis that if he is to returned to Bangladesh he would be harmed or killed by certain members of the rival political party Awami League (“AL”). He has been released on recognizance pending the determination of the claim.
3. According to the applicant’s case, he joined as a member of the youth wing of Bangladesh Nationalist Party (“BNP”) in 2003. In about mid‑2013, there was a big clash between supporters of BNP and AL during which the applicant’s uncle was killed by one of AL’s local leaders Jahed Azi (“JA”). The applicant was threatened by the AL people that he should tell the police that he did not witness any involvement of JA or otherwise they would kill him, whilst his uncle’s family urged him to tell the truth to the police. As he could no longer bear the pressure from all sides, he fled his village to stay at Dhaka. Whilst he was in Dhaka the applicant heard from his family that when the AL people could not find him at home, they beat up his father and vandalized his house. The applicant therefore left Bangladesh for China for his own safety on 25 February 2014, and from there sneaked into Hong Kong.
The Director’s decision
4. By a Notice of Decision dated 13 July 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].
5. The Director considered that the low intensity and frequency of past ill‑treatment from JA and the police is indicative of a low future risk. As the applicant had fled to Dhaka successfully and remained there safely for six to seven months, this shows that the risk of harm is a localized one and thus is assessed to be small. Furthermore, availability of state protection and internal relocation alternatives makes the perceived risk of harm, if any, avoidable. Thus, the non-refoulement claim was rejected.
The Board’s decision
6. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 19 October 2017, which the applicant attended. The hearing before the Board was a hearing de novo, and the Board came to its own conclusion on all issues of credibility, facts, law and the relevant country of origin information (“COI”). The Board did not find the material assertions in the non-refoulement claim to be credible, reliable, consistent with provisions of Bangladeshi legislation and/or consistent with logic and/or common sense. The Board therefore rejected the appeal on 3 November 2017.
The intended judicial review
7. The applicant filed a Form 86 and an affirmation on 29 November 2017 to seek leave to apply for judicial review against the decision of the Board. These documents were prepared by his solicitors. The grounds of the intended judicial review are as follows:
(1) the Board erred by failing to maintain a high standard of fairness by not ensuring that the hearing bundle and skeleton argument of the Director were delivered to the applicant within a reasonable period of time and/or providing interpretation of the bundle and skeleton argument in advance of the hearing;
(2) the Board erred in approaching his appeal by simply trying to see whether it could find fault with the Director’s decision and by not requiring the attendance of the Director at the appeal hearing;
(3) the Board failed to consider the COI materials[6]; and
(4) the Board failed to take into account that the applicant was not legally represented and has insufficient legal knowledge and did not inform him that he could complain.
8. On 3 January 2018, the applicant filed a notice to act in person in place of solicitors.
The judge’s decision
9. In the Form 86, the applicant requested an oral hearing of his application to seek leave for judicial review but did not attend the hearing held on 25 May 2018. The judge reserved his decision which was handed down on 3 August 2018.
10. The judge did not find anything amiss arising from the hearing bundle as most of the documents should be well familiar to the applicant as they had already been made available to him earlier when he still had legal representation and he never raised any issue or requested for further time at the oral hearing before the adjudicator. The judge also considered that there is no basis for the applicant’s other complaints. Besides, the judge did not find any error of law or procedural unfairness in the decisions of both the Director and the Board in their consideration and assessment of the applicant’s claim.
11. As the judge was not satisfied that the applicant would have any prospect of success in the intended judicial review, he refused the leave application accordingly.
12. The applicant filed a Notice of Appeal against the decision of the judge on 6 August 2018.
The grounds of appeal
13. The applicant stated his grounds of appeal in the Notice of Appeal as follows:
(1) he will face hardship if he is to return to his home country; and
(2) the Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. It has also relied on some cases which are outdated considering the dramatic changes in his home country. The lack of credible source of information has resulted in the Board making groundless speculations.
14. These grounds were not raised in his application for leave to apply for judicial review.
Legal Principles
15. The applicable principles regarding appeals of non-refoulement cases has been comprehensively stated by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14 and are as follows.
16. 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.
17. 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. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
18. In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.
19. 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.
Analysis and disposition
20. We have considered the written and oral submissions of the applicant.
21. The grounds of appeal were not raised in the application for leave to apply for judicial review.
22. The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive not canvassed at the Court of First Instance and for which leave has not been sought within time.
23. In any event, these grounds are lacking in particulars. The applicant failed to produce evidence in support which can refute the Board’s findings. He even failed to point out which piece of information or which case relied on by the Board was not officially recognized or is outdated.
24. 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. It has not been demonstrated that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
25. For the above reasons, the grounds of appeal are bound to fail and there is no basis for the Court of Appeal to interfere with the judge’s decision.
26. As there is no merit in the appeal and no prospect of success in the intended application for judicial review, we dismiss the appeal.
| (Susan Kwan) | (Mimmie Chan) | (Lisa Wong) |
Justice of Appeal
| Judge of the
Court of First Instance | Judge of the
Court of First Instance |
The Applicant appeared in person
[1] He completed a non-refoulement claim form on 30 June 2017, with legal representation from the Duty Lawyer Service.
[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[3] This refers to the risk of being arbitrarily deprived of his life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] 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.
[5] 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.
[6] The COI materials were in fact considered by the Board, see the Board’s decision, paras 37 to 39.