Alam Mir v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 503/2021

[2022] HKCA 195

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 503 OF 2021

(ON APPEAL FROM HCAL 3142 OF 2019)

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Before: Hon Chow JA and Lisa Wong J in Court

Date of Judgment: 2 March 2022

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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):

1.This is an appeal against the order made by Deputy High Court Judge P Li (“the Judge”) on 8 November 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 4 October 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 July 2018 rejecting his non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Bangladesh.  He arrived in Hong Kong on 26 November 2006 and was allowed to stay until 10 December 2006.  He overstayed and, on 25 October 2007, was arrested by the police for overstaying.  The Applicant raised a torture claim on 3 November 2007 which was rejected by the Director on 14 November 2013.  Afterwards, under the Unified Screening Mechanism, his claim for non-refoulement protection was assessed on all applicable grounds except the risk of torture[1].

3.The Applicant claims that if refouled to Bangladesh, he would be at risk of being harmed or killed by his boss over an allegation that he had stolen a bus belonging to his employer.  Details of the Applicant’s claim have been summarised by the Judge at §§2-8 of the CALL-1 Form.

4.By a Notice of Decision dated 9 July 2018, the Director rejected the Applicant’s non-refoulement claims on the following grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.The Applicant appealed the Director’s Decision to the Board.  On 5 September 2019, the Board heard the appeal.  On 4 October 2019, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found that the Applicant was not a genuine applicant for non-refoulement protection, and part of his evidence was not reliable (see Board’s Decision at §§17-19). The Board also found that state protection was available if resorted to upon the Applicant’s return to Bangladesh (§24), and it would not be unduly harsh for the Applicant to relocate to other parts of Bangladesh (§40).  The Board concluded that the Applicant had failed to substantiate any of the grounds under BOR 2 risk (§§25-28), BOR 3 risk (§§29-33); and persecution risk (§§34-35).

THE JUDGE’S DECISION

6.On 23 October 2019, the Applicant filed a Form 86 and supporting affirmation seeking leave to apply for judicial review of the Board’s Decision.

7.In his affirmation in support of the application, he made following points (see Form CALL-1 [2021] HKCFI 3319, at §13):

“a. He was not represented in the appeal to TCAB. There was no legal aid.

b. The hearing bundle was served on him about 9 days before the hearing. The majority documents were in English which he did not understand. He could not afford an interpreter. He did not understand the procedures in the TCAB hearing. However, he answered all questions honestly.

c. The news reports were of hearsay in nature. The adjudicator had made groundless speculations in the decision.”

8.On 10 June 2021, the Applicant filed an affirmation requesting to withdraw his application citing that his problem had been resolved and he would like to return to Bangladesh soon.  On 25 June 2021, leave was granted to the Applicant to withdraw his application for leave to apply for judicial review (§14).  On 12 July 2021, the Applicant filed another affirmation requesting to re-instate his leave application, stating that his problem had not been resolved (§15).  The Judge granted him leave to re-instate the application (§17).

9.In his decision, the Judge emphasised that there was no right to legal assistance at all stages of a non-refoulement claim (§20(a)); the Applicant submitted his affirmation in typewritten English and was able to source language assistance (§20(b)); the Applicant claimed that he had answered questions honestly during the Board hearing, and there was no record of any complaint against the Board (§20(c)); and the news reports relied on by the Board were from reliable news sources (§20(d)).

10.The Judge did not find any error of law or procedure by the Board (§21), and considered the Board’s Decision to be reasonable.  The Judge was also satisfied that the Applicant’s intended judicial review was not reasonably arguable, and there was no reasonable prospect of success in the intended application (§22).

11.By his decision dated 8 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

12.In his Notice of Appeal dated 11 November 2021, the Applicant wrote that the “High Court did not give true judgement.  He could not get the real fact.” The Applicant did not otherwise identify any ground of appeal against the Judge’s decision.  The Applicant has not filed any affirmation in support of his appeal.

13.The Applicant has also not filed any skeleton submissions in support of the appeal despite paragraph 3 of the directions of the Registrar of Civil Appeals contained in a letter to the Applicant dated 26 November 2021.  Accordingly, the Applicant is deemed to have waived his right for an oral hearing, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 4 of the said letter.

DISCUSSION

14.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

15.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. 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.

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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

17.No viable ground of appeal has been put forward by the Applicant.  In particular, he has failed to identify any error of law or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.  That being the position, the present appeal has no merits, and is dismissed.

The Applicant, acting in person

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

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

[3] 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.

[4] 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.