Nasir v. Torture Claims Appeal Board

CACV 300/2021

[2021] HKCA 1600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2021

(ON APPEAL FROM HCAL NO 860 OF 2019)

____________________

____________________

Before:  Hon Chow JA and S T Poon J in Court

Date of Skeleton Submissions: 9 September 2021

Date of Hearing: 25 October 2021

Date of Judgment: 1 November 2021

_________________

J U D G M E N T

_________________

Hon S T Poon J (giving the Judgment of the Court):

1.This is an appeal against the order made by Deputy High Court Judge To (“the Judge”) on 1 June 2021 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 22 March 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 June 2017 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 26 November 2014.  He lodged a non-refoulement claim on 29 November 2014.

3.The Applicant claims that, if refouled to Bangladesh, he would risk being harmed by the ruling political party Awami League, due to his support of the opposition party, the Bangladesh Nationalist Party (“BNP”). Details of the Applicant’s claim have been summarised by the Judge at §§5-9 of the CALL-1 Form^[1].

4.By a Notice of Decision dated 27 June 2017, the Director rejected the Applicant’s non-refoulement claims on all applicable grounds: risk of torture,^[2] BOR 2 risk,^[3] BOR 3 risk^[4], and persecution risk^[5] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Board.  On 7 September 2018, the Board heard the appeal.

6.On 22 March 2019, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board was concerned about the Applicant’s claim of his BNP membership and found that the Applicant did not indicate a level of knowledge reasonably expected of a long time active BNP member.  The Board also found that the Applicant’s claims were inconsistent and had serious doubts about the credibility of his claims.  In light of the assessment of the Applicant’s credibility, the Board found that the Applicant was not an active supporter or member of the BNP, and even if the Applicant was an ordinary supporter of BNP, there was no information suggesting that the Applicant would be at any real risk of any form of harm.  The Board concluded that the Applicant failed to establish torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

THE DEPUTY JUDGE’S DECISION

7.On 28 March 2019, the Applicant filed a Form 86 seeking leave to apply for judicial review against the Board’s Decision and a supporting affirmation. 

8.The Applicant advanced four grounds of judicial review:

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the ground that the applicant’s claim did not satisfy the requirement for non-refoulement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

9.The Judge considered the totality of the evidence and found no substance in the Applicant’s first ground.  As to the second ground, the Judge found that the alleged difficulties and procedural unfairness was self-induced by the Applicant.  Under the third ground, the Judge found no error of law, procedural unfairness, unreasonableness or irrationality in the Board’s Decision.  For the fourth ground, the Judge found that the Board fully considered the Applicant’s case and the Applicant did not suffer any disadvantage for not being legally represented.

10.The Judge concluded that there was no evidence showing any prospect of success in the Applicant’s intended application for judicial review.

11.Accordingly, on 1 June 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

12.In his Notice of Appeal, the Applicant complains he would face hardships if refouled and says that the Board’s assessment of the facts was incorrect.

13.In his skeleton arguments, the Applicant merely refers to general legal principles relating to non-refoulement claims, citing ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, but does not point to any error in the Judge’s decision or reasoning.

14.At the appeal hearing, the Applicant indicated that he has nothing to add.

DISCUSSION

15.The Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board.  The assessment of evidence, risk of harm, state protection, and the viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(1)).

16.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’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

17.The Applicant has not identified any errors of law or failure by the Judge to take account of relevant matters already placed before the Court, or shown that the Judge’s decision was otherwise plainly wrong.

18.For the reasons above, the Applicant has not shown any viable grounds of appeal.

19.We agree with the Judge that the Applicant’s intended judicial review is not reasonably arguable and has no prospect of success.  Leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.

The Applicant, unrepresented, appeared in person.

[1] [2021] HKCFI 1560

[2]This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[4]This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 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.