Das Sujon Chandra v. Torture Claims Appeal Board / Non Refoulement Claims Petition Office

CACV 191/2022

[2022] HKCA 1239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 191 OF 2022

(ON APPEAL FROM HCAL NO 442 OF 2019)

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Before:  Hon Chow JA and Ng J in Court

Date of Hearing:  16 August 2022

Date of Judgment:  20 September 2022

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.On 10 May 2022, the Applicant, who is acting in person, filed a notice of appeal against the decision made by Deputy High Court Judge To (“the Judge”) on 28 April 2022 refusing leave to the Applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 10 December 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 October 2017.

Background

2.The Applicant is a national of Bangladesh. He allegedly entered Hong Kong illegally from the Mainland on 5 February 2014 and was arrested by the police on the same day. On 8 February 2014, he raised a non-refoulement claim, claiming that, if refouled, he will be harmed or killed by people of the Awami League political party (“AL”) because of (1) his membership and involvement in an antagonising political party, namely Bangladesh Nationalist Party (“BNP”); (2) his land dispute with AL people; and (3) because he is a Hindi, he has difficulties living in Bangladesh in which the majority of the citizens are Muslims. Details of the Applicant’s claim were summarised by the Judge at §§6-10 of the CALL-1 Form.

3.By a Notice of Decision dated 30 October 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s decision. On 10 December 2018, the Applicant’s appeal was dismissed by the Board, and the Board confirmed the Director’s decision (“the Board’s Decision”). The Board’s Decision was summarised at §§11-15 of the CALL-1 Form. Suffice it to say that the Board found numerous inconsistencies and contradictions in the Applicant’s evidence which were sufficiently serious as to undermine the reliability of his account. For example, in his claim form, the Applicant alleged that he was targeted in the six incidents set out by the Judge at §8 of the CALL-1 Form because of his involvement with BNP. In his written representation, he also alleged that AL people threatened to kill him if he did not stop his political activities for BNP against AL. But he did not disclose the fact that three of the six incidents were related to land disputes over his family land which he admitted were not politically related. The Board found him incredible and did not accept his account. The Board also found no reliable evidence that the police had close ties with the AL. On the basis of the Country of Origin Information (“COI”), the Board was satisfied that protection of a sufficient standard is available. Lastly, the Board found internal relocation to other parts of Bangladesh a viable option to avoid the perceived harm and that it was reasonable to expect him to relocate. Accordingly, his claim for non-refoulement protection failed on all applicable grounds.

The Judge’s decision

5.On 18 February 2019, the Applicant filed his Form 86 against the Board’s Decision without stating any grounds.

6.On 28 April 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“16. The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation. He had been invited by the Court via its letter dated 15 December 2021 to inform the Court of his first language and to file submissions. He did not respond. The letter was sent to him at his address as stated in his supporting affirmation dated 18 February 2019. It has not been returned through the post. There was nothing to suggest the Applicant had moved or has not received the letter.

17. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board dismissing his appeal against the decision of the Director in his Notice in refusing his claim for non-refoulement protection. In effect, he is seeking to appeal the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh.”

7.Accordingly, the Judge refused to grant leave to apply for judicial review and dismissed the application.

This Appeal

8.In his Notice of Appeal dated 10 May 2022, the Applicant requested to set aside the Order dated 28 April 2022 by the Judge and that leave to apply for judicial review be granted. In his grounds of appeal, the Applicant stated that he would face hardship if he were to return back to his home country and that the Board had significantly relied on source of news which was not officially recognized, or was simply hearsay. The Board had also relied on some cases which were outdated considering the dramatic changes. The lack of credible source of information had resulted in them making groundless speculations.

9.In his 5-page written submissions dated 19 July 2022, the Applicant made a number of generic submissions on the general principles of law relating to non-refoulement claims, but, apart from a bare assertion against the Board that it acted in a procedurally unfair manner without properly assessing his credibility, did not provide any specific grounds of appeal against the Judge’s Decision.

10.The Applicant failed to attend the scheduled hearing of this appeal on 16 August 2022.

Discussion

11.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)).

12.In addressing the Applicant’s generic submissions in his skeleton submission, the assessment of evidence, the Country of Origin Information (“COI”), risk of harm, state protection and viability of internal relocation, these 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, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such errors of law, procedural unfairness or irrationality in the decision of the Board have been shown in the present case.

13.The Applicant has failed to point out or substantiate any viable grounds of appeal against the Judge’s decision dated 28 April 2022 either in his Notice of Appeal or skeleton submission. Accordingly, the Applicant’s appeal has no merits, and is dismissed with no order as to costs.

The Applicant, acting in person