CACV 422/2018
[2019] HKCA 16
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 422 OF 2018
(ON APPEAL FROM HCAL NO. 993 OF 2017)
__________________________
__________________________
| Before: | Hon Yeung VP and Poon JA in Court |
| Date of Judgment: | 18 January 2019 |
___________________
J U D G M E N T
___________________
Hon Yeung VP (giving the Judgment of the Court):
Introduction
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 24 August 2018, refusing to grant leave to the applicant to apply for judicial review.
2. Pursuant to the Order made by Master Au Yeung on 9 October 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 2019). The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing. We shall proceed to consider this appeal on papers based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur[2018] HKCA 247; Re Miha Md Limon[2018] HKCA 278; Re Ali Arshad[2018] HKCA 304; and Re SK Sarfaraj[2018] HKCA 307.
Background
3. The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1602. We shall not repeat the same here.
4. Briefly stated, the applicant is a national of Bangladesh. He entered Hong Kong illegally on 16 June 2014 and was arrested by the police on the same day. The applicant was then referred to the Immigration Department and on 20 June 2014, he lodged his non-refoulement claim. His claim was based on his fear of being harmed, or even killed by the people of Awami League (“AL”) in his locality because he supported the rival political group, the Bangladesh Nationalist Party (“the BNP”).
5. By a Notice of Decision dated 4 May 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 12 January 2017, the Director also assessed his claim on BOR 2 risk and decided against him.
6. The applicant appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision. After an oral hearing on 26 January 2017, the Board dismissed the appeal on 24 October 2017. In its decision, the Board found inconsistencies and changes in the applicant’s evidence at various stages about his account of attacks by the members of AL. Further, the applicant was unable to recall the significant events of his case and their sequences that casted serious doubts on the credibility of his evidence. As such, the Board found him not to be a truthful or reliable witness, and that he had fabricated and concocted his evidence for the purpose of advancing his case. The Board therefore concluded that the applicant had failed to establish his non-refoulement claim under all applicable grounds.
The Judge’s decision
7. The intended application for judicial review was in respect of the decisions of the Director and the Board. In the Form 86 filed on 1 December 2017, the applicant provided the following grounds of his intended challenge (as duly summarize by the Judge at [11] of the CALL-1 Form):
(1) the Director had failed to properly consider the presence of state acquiescence in assessing the applicant’s claim that he was tortured with the full collusion of the police and the state law enforcement agencies and powerful politicians thus rendering the state liable for failing to provide reasonable protection for its citizens;
(2) the Director had failed to take into proper account and consideration of the relevant COI to assess the ineffectiveness of the police in Bangladesh to protect its citizens;
(3) the Director had failed to take into account of the corruption and incompetency of the administration and various human rights violations in Bangladesh;
(4) the Director had failed to apply the high standards of fairness in assessing his claim;
(5) the Board had failed to make sufficient enquiry into his claim before arriving at its decision in dismissing the appeal.
8. On 24 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review. In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [15] for his refusal to grant leave :
“12. These are all very 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 decision, or in what way did the Director fail to take into account of or make sufficient enquiry into relevant COI, or what was the relevancy of state acquiescence to his claim, or in what way was high standard of fairness not applied in the consideration of his claim. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
13. The fact is that the applicant’s claim was rejected by the Board essentially on his credibility for the detailed reasons and analysis set out in paragraphs 37 – 53 of the decision that any attempts to challenge or criticize the reliance of COI in assessing the situations of police corruption or ineffectiveness of state protection in Bangladesh would seem futile or pointless to me, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the adjudicator’s clear findings as to the core of the applicant’s claim that he was not a member of BNP and at most was just a supporter, that he was never harmed by members or supporters of AL nor was sought out by them and hence would not be at any risk upon his return to Bangladesh, I am unable to find any basis or merits in any of the grounds of the applicant for interfering with the Board’s decision.
14. In the premises and having proceeded to consider 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.
15 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.”
The Appeal
9. The applicant filed the Notice of Appeal on 28 August 2018 in which he set out the following ground of appeal:
“the grounds of this appeal are that the gravity of my circumstances have noted been weighed or realized by both putative Respondents while considering my non-refoulement claim. I should be given an opportunity to plead my case properly.”
10. In the supporting affirmation filed on 28 August 2018, the applicant did not elaborate his ground of appeal and just requested the Court to exercise its discretion to allow his appeal.
Discussion
11. This Court has repeatedly emphasised that 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: see Re Zunariyah[2018] HKCA 14; Re Qadir Sher[2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board[2018] HKCA 152; Re Rizwan alias Rizwan Gulistan[2018] HKCA 162; Re Lakhwinder Singh[2018] HKCA 246 and Re Masoom Parvez[2018] HKCA 163.
12. In the present case, after having rigorous examination and anxious scrutiny of the materials available before him, the Judge found no reasonably arguable basis to challenge the findings of the Board. We agree with the Judge’s decision and find nothing amiss in his reasons for refusing to grant leave to judicial review. Further, the applicant did not put forth any viable ground to reverse the judge’s decision in the Notice of Appeal and his application is doomed to fail.
13. For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.
| (W Yeung) | (Jeremy Poon) |
| Vice-President | Justice of Appeal
|
The applicant, unrepresented, acted in person