Rahman Moksudur v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 515/2021

[2022] HKCA 197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 515 OF 2021

(ON APPEAL FROM HCAL 1648 OF 2019)

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Before: Hon Chow JA and Lisa Wong J in Court

Date of Written Submissions: 17 January 2022

Date of Hearing: 15 February 2022

Date of Judgment: 2 March 2022

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JUDGMENT

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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 16 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 13 June 2019. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 June 2018 rejecting the Applicant’s non-refoulement claim.

BACKGROUND

2.The Applicant is a national of Bangladesh.  He came to Hong Kong illegally from China on 11 July 2013 and was arrested by the police on the same day.  He raised a torture claim on 15 July 2013 which was rejected by the Director on 9 January 2014.  He also made a non-refoulement claim on 22 July 2013.  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 will be at risk of being harmed or killed by members of the Awami League (“AL”) or ill-treated by the authorities because of his membership of the student wing of the Bangladesh Nationalist Party (“BNP”). Details of the Applicant’s claim have been summarised by the Judge at §§2-13 of the CALL-1 Form ([2021] HKCFI 3363).

4.By a Notice of Decision dated 8 June 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.On 21 June 2018, the Applicant appealed the Director’s Decision to the Board.  On 12 March 2019, the Board heard the appeal.

6.On 13 June 2019, the Board dismissed the Applicant’s appeal and affirmed the Director’s Decision (“the Board’s Decision”).  The Board found, inter alia, that (i) the Applicant had not given a truthful or reliable account of his circumstances in Bangladesh and the reasons why he left that country (see Board’s Decision at §§59-64), (ii) the Applicant had given confused and irreconcilably inconsistent evidence regarding his alleged involvement in the BNP (§§37-45); (iii) the Applicant’s evidence regarding past threats and harm from the AL was vague and limited (§§46-52); and (iv) he had given inconsistent evidence regarding three court cases in which false accusations had allegedly been made against him (§§53-58). The Board concluded that the Applicant failed to substantiate any of the grounds under BOR 2 risk (§65), BOR 3 risk (§66); and persecution risk (§67).

THE JUDGE’S DECISION

7.On 17 June 2019, the Applicant filed a Form 86 and a supporting affirmation seeking leave to apply for judicial review of the Board’s Decision.

8.In his supporting affirmation, the Applicant complained that the Director had been excused from the appeal hearing before the Board, and the Board did not question the decision of the Director, had not considered that the Applicant was not represented, and did not inform him about the “channels of complain[t]” (see Form CALL-1 at §20).

9.In a further letter dated 16 October 2020 from the Applicant, he stated that the adjudicator did not analyse the facts and the supporting documents and the adjudicator relied on sources of news which were not official.  He stressed that his life was at risk as the AL people were still looking for him and the police could not help him.  He would be tortured or killed by the police if he returned to Bangladesh (§21).

10.In his decision, the Judge emphasised that there was no right to legal representation at all stages of a non-refoulement claim (§24); if the Applicant was not satisfied with the Board’s Decision, he could apply for judicial review (§25); and in relation to the Applicant’s letter dated 16 October 2020, the adjudicator had not relied on any news reports in coming to her decision.  The Judge also agreed with the Board that the Applicant was not a truthful witness (§26).

11.The Judge did not find any error of law or procedure by the Board, and considered the Board’s Decision to be reasonable (§28). 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 (§29).

12.By his decision dated 16 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.

THIS APPEAL

13.In his Notice of Appeal dated 19 November 2021, the Applicant wrote that he would “face hardship life if he return back to his home country and that the Torture Claims Appeal Board has significantly relied on source of news which is not officially recognized or it is simply hearsay.  The lack of credible sources of information has resulted in them making groundless speculations.”

14.In his 5-page written submissions dated 17 January 2022, the Applicant makes some general complaints against the Judge’s decision, but has failed to identify any specific error in the Judge’s decision.  He repeats his fear of returning to Bangladesh on the ground that he will face hardship or even be tortured or killed by his enemy in his home country.

15.At the hearing of this appeal on 15 February 2022, the Applicant stated that the local police was still looking for him at his home, and it was risky for him to do so.  Hence, he did not want to go back to his home country.

DISCUSSION

16.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.

17.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.

18.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.

19.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, unrepresented, appeared 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.