CACV 259/2024, [2024] HKCA 1035
On appeal from [2024] HKCFI 1660
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 259 OF 2024
(ON APPEAL FROM HCAL NO 1266 OF 2019)
________________________
BETWEEN |
| | MD Amir Hossain alias Abdul Alim | Applicant |
| | alias Alim, Abdul | |
| | alias Fazlul Hoque Khan | |
| | alias Khan Fazlul Hoque | |
| | alias MD Amir Hossion | |
| | alias Hossain Md Amir | |
| | alias Hossain MD Amir | |
| | alias MD Jamal Ahmed | |
| | and | |
| | Torture Claims Appeal Board | Putative
Respondent |
| | and | |
| | Director of Immigration | Putative
Interested Party |
________________________
| Before: | Hon Kwan VP and Ng J in Court |
| Date of Judgment: | 13 November 2024 |
________________________
J U D G M E N T
________________________
Hon Ng J (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 25 June 2024 refusing leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 27 June 2024.
Background
2. The applicant, aged 48, is a national of Bangladesh. He had previously entered into Hong Kong on various occasions and been repatriated to Bangladesh. He last entered Hong Kong illegally on 24 August 2015 and on the following day surrendered to the Immigration Department and lodged his claim for non-refoulement protection. His claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by local supporters of the political party Awami League (“AL”) because he was a supporter of a rival party the Bangladesh Nationalist Party (“BNP”).
The decisions of the Director and the Board
3. The Director of Immigration (“the Director”) considered the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. The Director rejected his claim by a Notice of Decision dated 26 September 2018.
4. In light of the low intensity and frequency of past ill-treatment, the Director assessed that the risk of harm from the AL supporters upon the applicant’s return to Bangladesh was low. The Director also found no evidence of any real intention of them to seriously harm or kill him or any political reason for them to target him for harm. In addition, the Director found that, in the absence of any official involvement, reasonable state or police protection and internal relocation alternatives were available to the applicant upon his return to Bangladesh.
5. The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 17 January 2019 to give evidence and answer questions raised with him. As there were material inconsistencies and discrepancies in his evidence, the Board found the applicant was not a reliable witness and rejected his claim of fear of harm as wholly unreliable. The Board concluded his account of events of being involved in political activities which led to his alleged risk of harm from rival political party had been fabricated to create a claim for non-refoulement protection. The Board therefore on 26 April 2019 dismissed his appeal and confirmed the Director’s decision.
The intended judicial review
6. The applicant filed a Form 86 and an affirmation on 10 May 2019 seeking leave to apply for judicial review against the decision of the Board. In the Form 86, he put forward the following grounds for his intended challenge:
(1) the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that it did not satisfy the requirements;
(2) the Adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;
(3) the Board’s decision to refuse the applicant’s appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness;
(4) the Board failed to meet the greater care and duty owed to a self-represented claimant;
(5) the applicant was not given an opportunity to put forward his submissions at his appeal hearing before the Board or to reply to the Director’s submission during his appeal hearing; and
(6) the Board had significantly relied on sources of news not officially recognized or were simply hearsay or outdated which led to groundless speculations that it would be safe for the applicant to return to his home country.
The judge’s decision
7. The applicant attended the hearing before DHCJ Bruno Chan on 4 June 2024.
8. The judge held that the applicant’s grounds were just some bare and vague assertions without any particulars or specifics or elaborations as to how the Board had erred in the decision, unlawfully fettered its discretion or acted procedurally unfairly or irrationally. There were also no particulars as to what sources of news or COI relied upon by the Board were not officially recognised, were hearsay or outdated or how the applicant was not given the opportunity to make his submissions. The judge was thus not satisfied that there was any reasonably arguable basis for his intended challenge. The judge concluded that there was no prospect of success in the intended judicial review and dismissed the leave application on 25 June 2024.
Grounds of appeal
9. The applicant stated the following grounds of appeal in his Notice of Appeal:
(1) The applicant would face hardship if he returned to his home country.
(2) The Board made groundless speculations by relying on sources of news which were not officially recognised or were simply hearsay. The Board also relied on cases which were outdated.
Non-compliance with order for lodging of skeleton argument
10. Directions were given by the Registrar of Civil Appeals on 28 August 2024 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 this appeal and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.
11. The appeal was scheduled to be heard on 23 October 2024. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 25 September 2024. As the order of the Registrar was not complied with, the hearing date was vacated pursuant thereto. The court informed the applicant that the hearing date had been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 10 October 2024.
Analysis and disposition
12. The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
13. The role of the court in an application for leave for judicial review is not to rehear the appeal to the Board or to provide a further avenue of appeal from the Board. The court should not usurp the role of the Board. Assessment of evidence, Country of Origin Information materials, 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, procedural unfairness, irrationality or other public law errors committed by the Board.
14. 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.
15. The applicant’s grounds in this appeal are just bare assertions without evidence in support. The applicant failed to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
16. For the above reasons, there is no merit in the applicant’s appeal. We therefore dismiss it accordingly.
(Susan Kwan)
Vice President | (Peter Ng)
Judge of the Court of
First Instance |
The Applicant (Appellant), acting in person
[1] [2024] HKCFI 1660
[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115)
[3] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[4] This refers to 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).
[5] 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.