CACV 486/2021
[2022] HKCA 293
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 486 OF 2021
(ON APPEAL FROM HCAL 1952/2018)
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Before: Hon Cheung JA and Barma JA in Court
Date of Judgment: 25 February 2022
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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 (“the Judge”) given on 28 October 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 (“the Board”) dated 6 September 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) 14 December 2016 rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1] (“the Director’s Decision”).
Background
2. The applicant is a national of Bangladesh. He arrived in Hong Kong on 25 December 2005 and was permitted to remain as a visitor until 8 January 2006. He overstayed and was arrested by the police on 23 November 2007. Thereafter, he lodged a non-refoulement claim in 2014.
3. The applicant’s claim was based on a fear of being harmed or killed by the local leader of an opposing political party. The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Judge’s decision (“the CALL-1 Form”)[2].
4. The Director on 11 June 2014 rejected the non-refoulement claim. The Board dismissed the applicant’s appeal against that decision on 7 November 2014. The Director then invited the applicant to lodge further information of this claim including the BOR 2 risk.
5. By a Notice of Decision dated 14 December 2016 (i.e. the Director’s Decision), the Director decided against the applicant’s claim. The Director’s Decision covered only the BOR 2 risk[3].
6. The applicant appealed to the Board. After a hearing on 27 March 2018, the Board dismissed the appeal on 6 September 2018 (i.e. the Board’s Decision). The Board’s Decision also covered the BOR 2 risk. The Board re-affirmed its earlier decision of 7 November 2014 where it was of the view that the applicant’s evidence (whether documentary or oral) was incredible, and that he had failed to establish a personal and real risk to his absolute and non-derogable rights, such as his BOR 2 rights.
The Judge’s decision
7. The applicant filed a Form 86 on 17 September 2018 seeking to judicially review the Board’s Decision but did not set out any grounds of review. Nor did he file any affirmation in support.
8. After summarising the facts and background of the case, giving due consideration to the decisions of the Director and the Board and hearing from the applicant at the hearing, the Judge refused to grant leave for judicial review. The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [16] of the CALL-1 Form:
“12. On 17 September 2018 the Applicant again filed a Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation, and at the hearing of his application he just repeated his claim as before, and that he still has problem in his home country that he wants to remain in Hong Kong. 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.
13. 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.
14. In the Applicant’s case, the Board again rejected his claim essentially on its adverse finding on his credibility as in the previous decision for the thorough and detailed analysis and reasoning set out in paragraphs 16 – 23 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.
15. 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.
16. 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 28 October 2021, the applicant stated:
“The High Court dismissed my leave to apply but he failed to show any cause I do not agree with his decision. Please re examine my judicial review.”
10. No supporting affirmation was filed by the applicant.
11. The applicant did not request an oral hearing and consented to the appeal being disposed of on paper by the court. We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.
12. In his skeleton submissions dated 8 November 2021, the applicant referred to ST v Director of Immigration (sic)[4] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.
Discussion
13. The applicant has in his Notice of Appeal failed to identify with particulars any error on the part of the Judge and thus failed to raise any viable ground of appeal. The applicant did not, for instance, point to any relevant matter that the Judge had failed to consider, any error of law on his part or any other reason why the refusal of leave was plainly wrong. We cannot discern any either.
14. Turning to the written submissions and the well-established legal principles cited therein, there was no attempt by the applicant to elaborate on whether and, if so, how there had been a failure to apply them in the processing of his non-refoulement claim.
15. In any event, the grounds advanced by the applicant are vague and lack particulars. They should be rejected for this reason also.
16. Further, we have scrutinised the Board’s Decision and the Judge’s decision and are satisfied that they are both in order.
17. There is therefore no merit in the appeal and we dismiss the appeal accordingly.
| (Peter Cheung) | (Aarif Barma) |
| Justice of Appeal | Justice of Appeal |
The applicant acting 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] [2021] HKCFI 3217
[3] See the procedural background to this case, which has been set out by the Judge at [5] to [8] of the CALL-1 Form.
[4] The correct citation should be ST v Betty Kwan.