Alam Mohammad Ashraful v. Torture Claims Appeal Board

CACV 320/2021

[2021] HKCA 1603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 320 OF 2021

(ON APPEAL FROM HCAL NO 1382 OF 2018)

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

Date of Written Submissions: 6 September 2021

Date of Hearing: 25 October 2021

Date of Judgment: 1 November 2021

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J U D G M E N T

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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 Bruno Chan (“the Judge”) on 16 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 15 June 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 5 December 2016 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Bangladesh.  He entered Hong Kong illegally in June 2013 and was arrested by the police on 3 December 2013. He lodged a non-refoulement claim on 27 November 2015.

3.The Applicant claims that, if refouled to Bangladesh, he would risk being harmed or killed by certain members of the ruling political party Awami League, due to his membership in the opposition party, the Bangladesh Nationalist Party (“BNP”).  Details of the Applicant’s claim have been summarised by the Judge at §§3-4 of the CALL-1 Form^[1].

4.By a Notice of Decision dated 5 December 2016, 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 16 March 2018, the Board heard the appeal.

6.On 15 June 2018, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found the Applicant’s evidence as to his involvement with the BNP and the alleged incidents to be confusing and inconsistent and found that the Applicant’s limited ability to display any knowledge of the political party raised considerable doubts in relation to the credibility of his claims^[6]. In light of the assessment of the Applicant’s credibility, the Board found that the Applicant had no association with the BNP.  The Board concluded that the Applicant failed to establish torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

THE JUDGE’S DECISION

7.On 13 July 2018, the Applicant filed a Form 86 seeking leave to apply for judicial review against the Board’s Decision. 

8.The Applicant provided no grounds for seeking relief in his Form 86, and his supporting affirmation stated that he needed more time to produce further evidence in support of his claim.

9.The Judge found that even if the claims were true, the Applicant could relocate and so there was no justification to afford him with non-refoulement protection.  Citing TK v Jenkins & Anor [2013] HKC 526, the Judge considered that if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the applicant to relocate to another part of the country, there is no justification for affording international protection.

10.The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness in the Board’s Decision, and no evidence showing any prospect of success in the Applicant’s intended application for judicial review.

11.The Judge concluded that he was not satisfied that there was any prospect of success in the Applicant’s intended application for judicial review.

12.Accordingly, on 16 June 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

13.In his Notice of Appeal, the Applicant alleged that the Judge failed to show any real ground for refusal without providing any further explanations.

14.Further, the Applicant filed two written submissions to the Court, but made bare statements that did not point to any error in the Judge’s decision or reasoning.

15.In his first written submission dated 2 August 2021, the Applicant stated that he was an active worker of the BNP and repeated the background of his claim.

16.In his second written submission dated 6 September 2021, the Applicant barely asserted that the Judge copied from the Director and the Board without providing any particulars.

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

DISCUSSION

18.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)).

19.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)).

20.The Applicant has not identified any errors of law, a 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.

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

22.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 1722

[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.

[6]see Board’s Decision at §§39-45