RE MOHAMMAD MONIR HOSSAIN MUNSHI

CACV 397/2021

[2023] HKCA 151

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 397 OF 2021

(ON APPEAL FROM HCAL 2180/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  On 26 January 2022, this court (Barma JA and Lisa Wong J)  handed down a judgment dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 August 2021 refusing leave to the applicant to apply for judicial review. The applicant had sought to review the decision of the Torture Claims Appeal Board dismissing his appeal from the decision of the Director of Immigration rejecting his non-refoulement claim.

2.  The facts and issues in the appeal, as well as the court’s reasons for dismissing it, are set out in our judgment.[1]  We will not repeat them here.

3.  The applicant subsequently applied, by a Notice of Motion filed out of time on 13 June 2022, for leave to appeal to the Court of Final Appeal.  In the Notice of Motion, the applicant simply stated that he “[wanted] to go to the Court of Final Appeal”.  In the affirmation filed on the same day, the applicant merely acknowledged that his application was out of time.

4.  In breach of the directions by the Registrar of Civil Appeals, the applicant lodged his written submissions late.  However, given the short delay (by 1 day), we have proceeded to consider the submissions. In his written submissions lodged on 28 June 2022, the applicant merely stated, in gist, that he did not want to return to Bangladesh because he preferred the living conditions in Hong Kong.

5.  Having considered the applicant’s Notice of Motion, affirmation and written submissions, we see no reason to depart from the usual practice of determining an application of this kind on the papers. We have therefore determined the applicant’s application on the basis of the documents filed.

6.  The applicant failed to explain how and when he eventually came to know about the judgment of this court.  We are therefore of the view that the applicant has failed to provide a reasonable explanation for the delay.  The delay of more than 3 months is substantial, and the application should be dismissed on this basis alone.  We have nonetheless considered the merits of the application.

7.  In any event, the matters advanced by the applicant do not constitute grounds for granting leave to appeal to the Court of Final Appeal. The applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine, as required by section 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap 484.  Nor is any such question apparent to us from the matters he has raised.

8.  None of the matters stated in the Notice of Motion are therefore in our view reasonably arguable before the Court of Final Appeal. We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

9.  For these reasons, the Notice of Motion filed on 13 June 2022 is dismissed.

The applicant acting in person

CACV 397/2021

[2022] HKCA 140

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 397 OF 2021

(ON APPEAL FROM HCAL 2180/2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Barma JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“judge”)  given on 5 August 2021 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 2 October 2018[1] (“Board’s Decision”)  dismissing the applicant’s appeal against the decision of the Director of Immigration (“Director”)  dated 6 January 2017 rejecting the applicant’s non-refoulement claim (“Director’s Decision”).

Background

2.  The applicant is a national of Bangladesh.  He claimed that he departed Bangladesh for Mainland China on 2 July 2007, and arranged to enter Hong Kong illegally on 15 March 2008.  The applicant was arrested by the police on 18 March 2008 and was referred to the Immigration Department thereafter.  He lodged a non-refoulement claim on 29 March 2008.

3.  The applicant’s claim was based on threats of death and harm by several members of the Bangladesh Nationalist Party (“BNP”)  by reason of his refusal to join the BNP and to pay them extortion money.  The details of the applicant’s claim have been summarised by the judge at [2] and [3] of the judge’s decision[2].

4.  By a Notice of Decision dated 6 January 2017 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered the BOR 2 risk[3], the BOR 3 risk[4], the persecution risk[5] and the torture risk[6].

5.  The applicant appealed to the Board.  After a hearing on 19 June 2017, the Board dismissed the appeal on 2 October 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The inconsistencies between the applicant’s oral and written evidence led the Board to conclude that his claims were not credible.  The Board therefore found that there is no real risk of the applicant being harmed if he were to return to Bangladesh.

The judge’s decision

6.  The applicant filed a Form 86 on 10 October 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

7.  In his supporting affirmation filed on the same date, the applicant deposed:

“I would like to reject and review the decision made by the Immigration Department[7] on my case. They disregard my dangerous situation.”

8.  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 grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [8] to [13] of the CALL-1 Form: 

“8. On 10 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without putting forth any proper grounds for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or irrationality 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 for his intended challenge.

9. 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.

10. 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 49 – 61 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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.

11. 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 if true 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.

12. 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.

13.   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

9.  In the Notice of Appeal filed on 19 August 2021, the applicant stated that:

“I would like to reject and review the decision made by the Torture Claims Appeals Board and the Court. They disregard my dangerous situation.”

10.  The applicant did not file an affirmation in support of the Notice of Appeal.

11.  In his written submissions dated 11 October 2021, the applicant repeated the reasons for his fear of a return to Bangladesh, and contended that the judge “did not read [his] problem” and did not know that he is from Bangladesh.

12.  The appeal was originally fixed to be heard on 22 November 2021, with an Urdu interpreter arranged by the court upon the request of the applicant.  However, the applicant informed the court on the date of the hearing that Urdu was not his native language and that he in fact required the assistance of a Bengali interpreter. The hearing was therefore adjourned to 17 January 2022 so that arrangements could be made for a Bengali interpreter to be present.  The applicant appeared at the adjourned hearing, but had nothing of substance to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

13.  The grounds of appeal set out in the Notice of Appeal contend that the Board and the judge disregarded the dangerous situation faced by the applicant if he was refouled.

14.  Regarding the complaint made against the Board, the applicant has failed to identify any error on the part of the judge and this is therefore not a viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.

15.  In respect of the complaint directed at the judge, as this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established. 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, and Re Masoom Parvez[2018] HKCA 163.  The judge considered the decisions of both the Director and the Board and found no basis for intervening.  In our view, he was correct to do so.

16.  In any event, the grounds advanced by the applicant are vague and lack particulars.  They should also be dismissed for this reason.

17.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.

The applicant appeared in person