CACV 472/2020
[2021] HKCA 595
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 472 OF 2020
(ON APPEAL FROM HCAL 628/2018)
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| RE: | SHAHID MOHAMMED | Applicant |
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Before: Hon Barma JA and ST Poon J in Court
Date of Hearing: 26 April 2021
Date of Judgment: 7 May 2021
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J U D G M E N T
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Hon Barma JA (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 31 August 2020 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 4 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”) dated 30 August 2017 rejecting the applicant’s non-refoulement claim.
Background
2. The applicant is a national of Bangladesh. He entered Hong Kong on 27 January 2016 illegally and surrendered to the Immigration Department on 28 January 2016. He lodged a non-refoulement claim on 23 June 2016.
3. The applicant’s claim was based on threats from his relatives arising out of a land dispute. The details of the applicant’s claim have been summarised by the judge at [2] to [10] of the CALL-1 Form.
4. By a Notice of Decision dated 30 August 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].
5. The applicant appealed to the Torture Claims Appeal Board. After a hearing on 26 January 2018, the Board dismissed the appeal on 4 April 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.
6. At [66] – [67] of the Board’s Decision, the Board found that the applicant was not a reliable witness and that he was not a person of interest to the police or any other person, including his uncles and cousins.
The judge’s decision
7. The applicant filed a Form 86 on 12 April 2018 which contained no ground for seeking relief.
8. In his affirmation in support of the leave application dated 12 April 2018, the applicant exhibited the relevant documents without giving any ground for judicial review.
9. The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.
10. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [16] to [20] of the CALL-1 Form:
“16. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where 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.
17. 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 44 – 92 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
18. Furthermore, the fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
19. 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.
20. 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.”
Grounds for appeal
11. In the Notice of Appeal dated 14 September 2020, the applicant contended that:
“the Plaintiff will face hardship life if he return back to his home country and that the [Board] has significantly relied on the source of news and relied on their own assumption which is not officially recognized, or it is simply hearsay. They have also relied on some cases and on some non-official organization’s report which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations”
12. In his skeleton submissions dated 22 March 2021, the applicant submitted that:
(1) the judge failed to apply the principle of irrationality and principle of procedural unfairness to the decisions by the Board and the Director;
(2) the judge failed to give greater care to the applicant and “disappointed” him, notwithstanding that his problems are severe and he has submitted all the proof for his claim;
(3) the judge’s decision to refuse the applicant’s appeal was unreasonable;
(4) the judge “may not received the applicant’s claims what had been refused by the [Board] and [the Director];
(5) the Board failed to give sufficient chance to the applicant to arrange relevant evidence for his claim and his appeal;
(6) the Board failed to make a finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;
(7) the Board failed to analyze and assess whether state protection existed in Bangladesh and misdirected itself to the extended meaning of state protection; and
(8) the applicant is not a member of the ruling party in Bangladesh, the government will not provide any protection to him.
13. The applicant agreed by a letter of 14 September 2020 that the appeal could be heard by two judges. We heard the appeal on 26 April 2021. At the hearing, the applicant stated that he could not return to Bangladesh as his problems had not been resolved. He said that the relatives with whom his family had the land dispute were politically well connected and had influence with the current ruling party in Bangladesh making it dangerous for him to return.
Discussion
14. None of the grounds of appeal had been raised as a ground for judicial review before the court below. It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst[2018] HKCA 504, CAMP 524/2018 at §14(4)). In any event, all of these grounds lack particulars and therefore are bound to fail.
15. As for the bare assertion that it is unsafe for him to return, this ground is not of itself a ground for judicial review or a valid ground of appeal. The matters stated at the hearing had been raised before the Board and were duly noted by the judge in the CALL-1 Form at [9]-[10]. They do not therefore add anything of substance to his appeal. In any event, the applicant failed to substantiate any error in the Board’s findings that he is not a reliable witness and that he is unlikely to be targeted by his uncle and cousins upon his return. These points are therefore without merit.
16. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Aarif Barma) | (ST Poon) |
| Justice of Appeal | Judge of the Court of
First Instance |
The applicant appeared in person
[1] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] 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.
[3] 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 and its 1967 Protocol.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.