Re Mizanur Rahman

CACV 319/2018

[2018] HKCA 776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 319 OF 2018

(ON APPEAL FROM HCAL 642/2017)

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J U D G M E N T

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1.This is an appeal against the decision of Deputy High Court Judge Woodcock given on 5 July 2018 refusing leave 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 dated 12 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 3 October 2014 and 26 April 2017 rejecting the applicant’s non-refoulement claim. The Director of Immigration was also named as a proposed respondent.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 20 November 2005 but overstayed after 15 December 2005 and was arrested by the police on 17 May 2007.  After his arrest, he lodged a non-refoulement claim on 26 August 2008. 

3.The applicant’s claim was based on threats from the family of his girlfriend.  The details of the applicant’s claim have been summarised by the judge at [3] to [6] of the CALL-1 Form.

4.By a Notice of Decision dated 3 October 2014 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 26 April 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board. After a hearing on 3 February 2015, the Board dismissed the appeal on 12 September 2017 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection. 

7.At [63] of the Board’s Decision, the Board did not accept that the applicant’s case was truthful.  The Board was also satisfied at [58] that state protection would be available for the applicant and at [78] that internal relocation would be viable.

The deputy judge’s decision

8.The applicant filed a Form 86 on 20 September 2017 which contained no ground for seeking relief. 

9.In the affirmation in support of the leave application dated 20 September 2017, the applicant advanced various grounds for judicial review against the Board and the Director which are summarised below:

(1)   both decision-makers failed to properly consider his evidence;

(2)   both decision-makers failed to properly consider his well-founded fear of his enemies;

(3)   both decision-makers failed to properly consider and fairly deal with Country of Origin (“COI”) information; and

(4)   both decision-makers failed to consider the concept of extended State acquiescence. 

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 [14] to [18] of the CALL-1 Form:

“14. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find no fault with the adjudicator’s decision. The same applies to the decision of the Director. The applicant’s grounds and complaints are not made out and I find no substance in the grounds of this application.

15. The grounds in the applicant’s supporting affirmation are not so clear or coherent but from what I can summarise he submits both decision-makers failed to properly consider his evidence. Both decision-makers failed to properly consider his well-founded fear of his enemies. They failed to properly consider and fairly deal with Country of Origin (‘COI’) information. Both failed to give adequate reasons for rejecting the applicable grounds. Both failed to consider the concept of extended State acquiescence. However, there are no particulars provided by the applicant for any of the grounds relied upon.

16. The adjudicator made a finding that even if she believed the applicant, he was not at risk under any applicable ground according to his own evidence. She set out in his decision his findings and reasons for his findings. She did not need to consider COI information and State protection when she did not believe the applicant was a genuine claimant. The applicant did not rely on the concept of extended State acquiescence so the decision-makers did not consider this concept. In any event, there is no evidence that this is a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials on or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons. There are no merits in the grounds highlighted above.

17. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

18. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.In the Notice of Appeal dated 18 July 2018 the applicant advanced the following grounds of appeal:

(1)   failure to consider the fact that his enemies are still trying to kill him, made false criminal complaints against him and threatened him and his family;

(2)   taking into account irrelevant considerations such as:

(a)   the fact that the applicant was never arrested, detained or imprisoned by Bangladeshi authorities;

(b)   the fact that the applicant was able to leave from Bangladesh without incident;

(c)   failure to consider country conditions, in particular that government authorities and employees were corrupt; and

(3)   insufficient basis to support the conclusion that he will not be subject to future harm upon refoulement.

12.In his skeleton submissions dated 11 September 2018, the applicant complained of failures by the Director and the Board to make sufficient enquiry into COI and failed to take account of the alleged fact that he would be arrested, or would be attacked when he returned to Bangladesh.  It is clear from his skeleton that those grounds were directed only towards the Board and the Director and not the judge’s reasons.  He also added that the Board and the Director failed to consider the concept of extended state acquiescence.

13.The applicant agreed by a letter of 18 July 2018 that the appeal can be heard by two judges.  We heard the appeal on 24 October 2018.

Discussion

14.None of the grounds whether in the notice of appeal or skeleton submissions is concerned with any error in the judge’s decision.  All of them are directed towards the Board’s Decision and the two decisions by the Director.  In these circumstances, the applicant has failed to put forward any viable grounds of appeal.  In any event, the judge pointed out that the applicant was unable to identify any error of law or procedural unfairness in the Board’s Decision or the two decisions by the Director.  We agree.

15.The appeal is therefore without merit and we dismiss this appeal.

The applicant acting in person