HKCA 934
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 166 OF 2020
(ON APPEAL FROM HCAL 202/2018)
||CHOWDHURY ABDUL KADER
Before: Hon Lam VP and Pang JA in Court
Date of Judgment: 19 November 2020
Hon Lam VP (giving the Judgment of the Court):
1. On 1 June 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 2 February 2018. In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”) dated 15 July 2016 and 13 July 2017 rejecting the applicant’s non-refoulement claim.
2. On 11 June 2020, the applicant filed a Notice of Appeal against the Judge’s decision.
3. The applicant is a Bangladeshi national. He entered Hong Kong illegally on 22 January 2014 and was arrested by police the same day. The applicant lodged his non-refoulement claim on 25 January 2014.
4. The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by members or supporters of the Awami League as he supported their political opponents, the Bangladesh National Party (BNP). The factual background was succinctly summarized by the Judge in  –  of the Form CALL-1 ( HKCFI 777).
5. By notices of decision dated 15 July 2016 and 13 July 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them. The former covered BOR 3 risk, persecution risk, and torture risk, and the latter covered BOR 2 risk.
6. The applicant appealed to the Board against the Director’s decision. An oral hearing was held on 22 December 2017, which the applicant attended in person. The Board found that there was no credible evidence that the members of the Awami League had specifically targeted him as a BNP supporter for any specific agenda. While he may well be a BNP supporter, the Board found that his involvement was at such low level and significance that it would not warrant any specific attention or persecution by the Awami League.
7. Although the Applicant was injured during Awami League attacks on BNP supporters, the Board considered that in many instances he was present as a spectator rather than a participant. He suffered little or no harm. As such, the Board found that the applicant was not at risk of serious harm and his fear was not well-founded. The Board also found that the applicant failed to seek available state protection and that internal relocation was viable. Thus the Board dismissed the applicant’s appeal on 2 February 2018 on all the applicable grounds.
Decision of the court below
8. On 9 February 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. His grounds for relief on judicial review, as stated in his supporting affirmation, were that the Director’s decision was unreasonable in that he failed to consider all the matters raised in his claim and/or to give adequate reason for the decision.
9. Following consideration of the documents only, on 1 June 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at  –  of the Form CALL-1 ( HKCFI 777, HCAL 202/2018) as follows:
“ 12. On 9 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form, while in his supporting affirmation of the same date he merely stated that the decision of the Director was unreasonable in that he failed to consider all the matters raised in his claim and/or to give adequate reason for his decision, which are just some vague assertions without any particulars or specifics or elaboration as to how that was so.
13. As has been repeatedly emphasized by the Court of Appeal, 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  HKCA 246; Re Daljit Singh  HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara  HKCA 400; and Nupur Mst v Director of Immigration  HKCA 524.
14. As noted above the Applicant did not put forward any proper or valid grounds other than some vague assertions of unreasonableness or unfairness in the decisions of the Director or the Board without any particulars or elaborations, and in the absence of any error in law or procedure in their decisions being clearly or properly shown by him,I do not find any reasonably arguable basis to challenge the findings of the Director or the Board.
15. As it has also been held by the Court of Appeal that the mere existence of a...