CACV 501/2018
[2019] HKCA 136
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 501 OF 2018
(ON APPEAL FROM HCAL NO 27 OF 2018)
________________________
BETWEEN
| | JUWEL | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD/
NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative Interested Party |
________________________
| Before: Hon Cheung JA, Yuen JA and Kwan JA in Court |
| Date of Judgment: 1 February 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 21 September 2018. 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 in mid-August 2006 and was arrested by the police on 4 October 2006. After he was referred to the Immigration Department for investigation, he lodged a torture claim on 20 December 2006 under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on the basis that if he returned to Bangladesh he would be harmed or killed by ST, a local leader of the political party Bangladesh Nationalist Party over certain personal dispute and for having witnessed a murder in which ST was involved. After his torture claim had been rejected with his subsequent appeal dismissed by the Board on 24 April 2013, he lodged a non-refoulement claim on the same basis on 26 April 2013 and completed a supplementary claim form on 24 April 2017. He has been released on recognizance pending the determination of the claim.
The Director’s decision
3. By a Notice of Decision dated 9 June 2017[1], the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim. The decision covered BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].
4. The Director considered that there was no indication that ST and his men have a real intention to kill the applicant and the low intensity and frequency of past ill-treatment from ST and his men is indicative of a low future risk. The troubles with ST happened back in 2001 to 2006 and the applicant had left Bangladesh for more than ten years since August 2006. The threats from ST and his men, even if they existed, should have dissipated after such a considerable lapse of time. The Director also did not accept that the applicant would face a real and personal risk of being subjected to ill-treatment allegedly inflicted by ST or his men or of being arbitrarily deprived of his life. His dispute with ST was a private one so it was not accepted that there will be a real and personal risk of him being persecuted for the reason of race, religion, nationality, membership of a particular social group or political opinion upon his return to Bangladesh. Availability of state protection and internal relocation alternatives makes the perceived risk of harm avoidable so the risk of the feared ill-treatment materializing is assessed to be unlikely. Thus, the non-refoulement claim was rejected.
The Board’s decision
5. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 25 September 2017. The Board concluded that the applicant is not a witness of truth, he does not have any profile that would bring him to the adverse attention of the authorities or government of Bangladesh on his return, there is no real risk that he will be arbitrarily deprived of his life or subjected to torture or cruel, inhuman or degrading treatment or punishment if he were refouled to Bangladesh. The Board therefore rejected the appeal on 2 January 2018.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on5 January 2018 to seek leave to apply for judicial review against the decision of the Board on the grounds that the adjudicator unlawfully fettered his discretion, acted in a procedurally unfair manner, rendered unreasonable or irrational decisions, failed to meet the greater care and duty owed to a self-represented claimant, and relied on information not officially recognized or simply hearsay or outdated cases.
The judge’s decision
7. The judge considered that the applicant’s complaints were just broad and vague assertions without particulars or specifics or elaborations except for the complaint about the hearing bundle. 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 did not find any error of law or procedural unfairness in the decisions of both the Director and the Board or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
8. The judge was not satisfied that the applicant has any prospect of success in the intended judicial review and refused the leave application accordingly.
9. The applicant filed a Notice of Appeal against the decision of the judge on 4 October 2018.
Grounds of appeal
10. 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;
(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. The lack of credible source of information has resulted in the Board making groundless speculations.
11. Only the second ground of appeal was in the grounds attached to Form 86 for the application for leave to apply for judicial review.
Non-compliance of unless order
12. The appeal was scheduled to be heard on 31 January 2019. Directions were given by the Registrar of Civil Appeals on 7 November 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.
13. A notice of hearing of the appeal dated 16 November 2018 was issued and sent to the applicant by post. In the notice, he was reminded that he should comply with the above directions of the Registrar.
14. The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 3 January 2019). Pursuant to the unless order of the Registrar on 7 November 2018, the hearing date has been vacated and this court shall proceed to consider the appeal on paper.
General principles
15. The general principles governing an appeal in a non-refoulement case have been stated comprehensively 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 the issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information (“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.
Merits
20. The first ground of appeal was not raised in the application for leave to apply for judicial review. 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. In any event, this ground of appeal is lacking in particulars and the applicant failed to show there is any error of law or procedural unfairness or irrationality in the decision of the Board. Therefore, the first ground of appeal is bound to fail.
21. The applicant’s complaint in the second ground is just a bare assertion without evidence in support which can refute the Board’s findings. Besides, he failed to point out which piece of information or which case relied on by the Board was not officially recognized or was outdated.
22. The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation is primarily within the province of the Board and the Director. It has not been 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.
23. There is no basis for the Court of Appeal to interfere with the judge’s decision. The second ground has no merit.
Conclusion and order
24. There is no prospect of success in the intended application for judicial review and no merit in the appeal. We therefore dismiss the appeal.
| (Peter Cheung) | (Maria Yuen) | (Susan Kwan) |
| Justice of Appeal | Justice of Appeal | Justice of Appeal |
The Applicant acting in person
[1] Under the Unified Screening Mechanism, the refusal decision of his torture claim under the statutory mechanism would not be reviewed by the Director, so the non-refoulement claim was assessed by the Director on applicable grounds other than torture risk.
[2] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.
[4] 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.