Md Babor Ali v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 161/2021

[2021] HKCA 1172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 161 OF 2021

(ON APPEAL FROM HCAL NO 523 OF 2019)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Written Submissions:  9 July 2021

Date of Hearing:  17 August 2021

Date of Judgment:  24 August 2021

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J U D G M E N T

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

Introduction

1.On 7 April 2021, DHCJ P. Li (“the Judge”)  refused to grant leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 30 January 2019 and dismissed the leave application. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 20 January 2017 rejecting the applicant’s claim based on BOR 2 risk.[1]

2.On 12 April 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision.

Background

3.The Applicant is a national of Bangladesh. He entered Hong Kong on 2 June 2007 with a Bangladesh passport and a double entry visa, and was allowed to stay until 9 June 2007.  He did not depart from Hong Kong upon expiry of his limit of stay, and was arrested by the police in 9 October 2007 for overstaying.

4.After his arrest by the police, he claimed that he learnt he could make a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to the Hong Kong Government which he did by way of written representation to the Director.  The screening process of his torture claim had not been completed prior to the commencement of the unified screening mechanism (“USM”)  on 3 March 2014 and thus his claim was treated as a non-refoulement claim under the USM.

5.The applicant’s claim was made on the basis that if he were to return to Bangladesh, he would be harmed or even killed by people of the Muslim Group Jamat and Shirbir because of his conversion from Muslim to Christianity.

6.By a Notice of Decision dated 29 September 2014 (“the Director’s 1^st decision”), the Director refused the applicant’s claim based on BOR 3 risk[2], persecution risk[3] and torture risk[4].

7.The applicant appealed the Director’s 1^st decision to the Board.  By the Board’s decision dated 31 December 2015 (“the Board’s 2015 decision”), the appeal was dismissed because the Board did not accept the applicant’s assertion that he had converted from Muslim to Christianity, or his account of other matters relevant to his claim.[5]  

8.On 6 January 2016, the applicant filed a leave application under HCAL 5/2016 for leave to apply for judicial review of both the Director’s 1^st decision and the Board’s 2015 decision.  The leave application was rejected by the Court of First Instance on 5 August 2016.  The applicant did not appeal that decision. 

9.The Director, by its letter dated 3 January 2017, invited the applicant to submit additional facts and information (if any)  for assessment of a possible claim based on BOR 2 risk.  Having received no reply from the applicant, by the Notice of Further Decision dated 20 January 2017 (“Director’s 2^nd decision”), the Director determined that the applicant had failed to establish a claim based on BOR 2 risk.

10.The applicant proceeded to appeal the Director’s 2^nd decision to the Board.  By it decision dated 30 January 2019 (“the Board’s 2019 decision”), the Board dismissed the appeal.  The Board found that there was nothing in the applicant’s petition or in the news reports submitted by him that would cause the Board to take a different view of his credibility and depart from the conclusion it reached in the Board’s 2015 decision and thus dismissed the applicant’s claim based on BOR 2 risk.[6]

Decision of the court below

11.On 22 February 2019, the applicant filed a Form 86 under HCAL 523/2019 for leave to apply for judicial review of the Board’s 2019 decision.  He did not provide any ground for his intended challenge in his Form 86 or in his supporting affirmation.

12.Subsequently, by a letter dated 10 December 2020, the applicant requested for cancellation of the leave application.  He indicated in the letter: “my problem is resolved in Bangladesh and there is no danger for me upon return.”  On 30 December 2020, the Court of First Instance granted leave to the applicant to withdraw his leave application.

13.By a further letter dated 24 February 2021, the applicant requested to “re-open” the leave application.  In his letter, he stated: “…But all efforts are in vain, the problems are remains and the problems are increased seriously.  My enemy is still looking for me… I cannot return back to there.”  The Court of First Instance allowed his application to re-instate the leave application.

14.The applicant did not request for an oral hearing and the Judge disposed of the application on paper.  By his decision dated 7 April 2021, the Judge refused the application for leave to apply for judicial review.  The reasons for the refusal were set out at [12] – [13] of the Form CALL-1 as follows:

“12. In his application for re-instatement of HCAL 523/2019, the applicant did not point out any specific error in the decision of the TCAB. He had not indicated any intention to file additional evidence nor did he request for an oral hearing.

13.  In the absence of any additional evidence, the adjudicator was right to consider the BOR 2 claim based on the existing evidence.  His decision not to hold another oral hearing was reasonable.  In my view, his conclusion to reject the story of the applicant was correct.  I agree with the Adjudicator.”

Appeal to this Court

15.On 12 April 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  In his Notice of Appeal, he advanced the following grounds of appeal (sic):

“1. I was made by applying on 10 December 2020 to intend to return back to home, after that the current situation of my country or origin, and the risk of my life from my enemies, I change to back home because I still fear for my life.

2.  The Honourable Judge didn’t consider my application therefore be open my claim for my BOR 2 claim.”

16.In compliance with the Court’s directions of 16 June 2021, the applicant lodged his written submissions on 9 July 2021, in which he made the following points:

(1)  The Director and the Board failed to comply with their duties to make sufficient inquiries into Country of Origin information (“COI”)  and adopted a passive approach in contravention of the high standards of fairness as per Li CJ in Prabakar.

(2)  The Director and the Board failed to take into account relevant considerations or took into account irrelevant considerations and therefore the decisions were illegal especially when they failed to pay due regard to the fact that the applicant would face a real risk from his enemies upon refoulement to his home country and his life would be in danger.

(3)  The applicant’s claim was not personal or private in nature.  The group of murderers will locate him wherever he hides in Bangladesh.  The decision did not explain clearly why he would not be subject to persecution risk upon refoulement.  The Board and the Director failed to assess his fear.  His enemies continue to look for him and he was in fear to return to his home country.

17.At the hearing, the Applicant said that he would be willing to return to his home country in 6 months’ time after the pandemic was over.

Legal principles

18.In considering this appeal, we apply the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

19.The applicant has not in his notice of appeal raised any or any proper ground of appeal, or identified any specific errors in the Judge’s decision, or any specific potential grounds for reversing the Judge’s decision. 

20.The applicant merely makes a general complaint that the Judge failed to consider his claim based on BOR 2 risk.  In our view, the Judge duly considered the Board’s 2019 decision and adequately explained why he refused to grant the applicant leave to apply for judicial review at [12] – [13] of his decision.  We do not find any error in the Judge’s decision.

21.The Board, having rejected the applicant’s evidence in the earlier 2015 decision, considered that there was no additional material or information which would cause the Board to take a different view of the applicant’s claim based on BOR 2 risk. Accordingly, the Board rejected the applicant’s claim in so far as it related to BOR 2 risk.  In our view, the Board’s conclusion is one which it was open to the Board to reach.  We do not see any valid basis to challenge the Board’s 2019 decision.

22.In short, we found no merit in the applicant’s appeal.

Order

23.For the above reasons, this appeal is dismissed.

The applicant, unrepresented, appeared in person