Younus Mohammad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

CACV 310/2022

[2022] HKCA 1667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 310 OF 2022

(ON APPEAL FROM HCAL NO 1037 OF 2019)

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JUDGMENT

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1.On 8 August 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 15 June 2022 (“the Order”)refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 8 March 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 8 October 2018.

BACKGROUND

2.The Applicant is a national of Bangladesh.  He entered Hong Kong illegally on 7 October 2015, and was arrested by the police on 8 October 2015. On 11 October 2015, he raised a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his five paternal uncles and their cadres due to a land dispute.  Details of the Applicant’s claim were summarised by the Judge at §§1-15 of the CALL-1 Form ([2022] HKCFI 1773).

3.By a Notice of Decision dated 8 October 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: torture risk, BOR 2 risk, BOR 3 risk, and persecution risk.

4.The Applicant appealed the Director’s decision to the Board.  On 8 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§16-19 of the CALL-1 Form, as follows:

“[16] The Applicant testified before the Board. The Board found him evasive and incredible on many issues.

[17] The Board did not believe his evidence. It found his case was vague and unbelievable. It accepted his personal and family background. It accepted that the Applicant’s family might have some dispute with the Uncles about ownership of the Land and the family house thereon. But, it did not accept that any assault occurred because of the dispute. The Applicant might have suffered injuries on his back but they were unrelated to the alleged attack by Kobir, whether because of the land dispute or because of their political difference. The Applicant’s evidence relating to all other matters including the threats and attacks by the Uncles were rejected by the Board. The Board found no evidence that suggests that the government would assist the Uncles to track down the Applicant so as to harm him and that the Uncles were so powerful and influential as claimed. On the basis of the aforesaid finding, the Board found that the Applicant was not or would not be faced with real chance of harm if returned to Bangladesh.

[18] Even assuming to the contrary that the Applicant would be faced with real chance of harm, the Board found, taking his case at its highest, that there was no ground to believe that the Applicant would be tortured or seriously harmed by his Uncles if returned to Bangladesh and that the past ill-treatment did not attain a minimum level of severity. The Board found that the Applicant’s problem was located to his local area and did not believe the Uncles were so powerful and their abilities to locate him anywhere in Bangladesh were not that strong. It found that it was the Applicant’s own volition not to seek police protection and not that state protection was not available. On the basis of Country of Origin Information (‘COI’), the Board found no indication that the state was involved in, indifferent to or has provided any form of encouragement to the Uncles in threatening or causing any harm to the Applicant. It found no basis in the evidence to believe that any public official or person acting in an official capacity would play any part in inflicting, instigating or acquiescing in the perpetration of such harm to the Applicant.

[19] Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant was not entitled to protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notice.”

THE JUDGE’S DECISION

5.On 17 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

6.On 15 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[21] The Applicant advanced five grounds of judicial review in his Form 86, but he did not elaborate. He was invited by the Court’s letter dated 22 March 2022 to make submission. Other than saying he had no new documents to submit and that he wanted to have an oral hearing, he did not make any written submission. He also absented himself at the hearing.

Ground (1) - The Decision was wrong and Wednesbury unreasonable

[22] The Applicant gave no particulars as to what was wrong with the Decision and in what way and why it was Wednesbury unreasonable. The Court understood that he meant to disagree with the outcome of the Decision. In the absence of particulars, the Court could only leave this complaint to be dealt with in its overall scrutiny of the Decision for errors of law, procedural unfairness and irrationality.

Ground (2) – Failure to give proper weight-age to the presence of state acquiescence

[23] The Applicant complained that it is evident that the Director has failed to appreciate or give proper importance or weight-age to the presence of state acquiescence resulting in an unfair outcome and rejection of his claim. He said he was ‘tortured at the behest and the state law enforcement agencies as well as those in the high ups of political circles.’ He did not refer to the evidence he relied on as supporting that complaint.

[24] On his own evidence, there were three incidents in 2008, 2009 and 2012. There was no violence during the first two incidents. During the 2012 incident, Kobir and a group of 10 to 15 cadres attacked the Applicant and his brother at his home. The Applicant’s father made a report to the police. The police recorded the complaint and went to the Applicant’s home to make some investigation. The Applicant alleged there was no follow up and no arrest. On the other hand, he did not follow up with his complaint either and left the home village. He went hiding in Dhaka and even left for India and Nepal. He had no problem exiting and entering Bangladesh. Indeed, as the Board found, it was the Applicant who never insisted protection from the police or other public authorities in his country and not the case that he had been refused assistance by the authorities. There is no evidence to suggest that the attack was made at the behest of state law enforcement agencies as well as those in the high ups of political circles.

[25] As for the weight to be given to the evidence and the inference to be drawn from the evidence, it is a matter solely within the realm of the Board as the tribunal of fact, which the court in an application for judicial review will not interfere.

Ground (3) – to take such argument into account or that the Director has failed to give enough weight to such argument and Country of Origin favourable to the Applicant

[26] Although this complaint is directed at the Director, the Court assumed in favour of the Applicant that it is directed at the Board as well. However, he failed to identify the argument which he alleged the Board of having failed to take into account. It is impossible to properly assess this ground of review.

[27] As for the weight to be given to a COI or parts of a particular COI, it is also a matter within the realm of the Board as the tribunal of fact, which the court cannot interfere.

Ground (4) – clean case of unfair attitude shown by the Director; corruption and incompetence of the administration

[28] This complaint is lacking in particulars. The Applicant did not identify the unfair attitude of the Director or the Board if the criticism is taken as being also directed at the Board. It is impossible to assess this complaint. As for the complaint of corruption and incompetence of the administration, even if established, it has no bearing on the Board’s Decision because it found that the Applicant’s risk of harm was low.

Ground (5) – The Director failed to attain the high standard of fairness required by the Wednesbury test

[29] This is a repetition of the Ground (1) and is lacking in particulars. The Court could only consider this complaint in its overall examination of the Board’s Decision.

Conclusion

[30] Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on his fear of harm by his Uncles and their cadres. The Decision of the Board was based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. The Board found him incredible. As the Applicant bears the burden of prove of his claims, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

[31] The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault.  There were no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board observed a very high standard of fairness.  Its Decision did satisfy the enhanced Wednesbury test.  Having considered his grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.”

THIS APPEAL

7.On 29 July 2022, the Judge granted the Applicant an extension of time to lodge an appeal against the Order.  In his Notice of Appeal dated 8 August 2022, the Applicant put forward the following ground(s) of appeal:

“The High Court dismissed my leave to apply for judicial review. I do not agree with the High Court. The Court could not show any reason for dismiss. I will show some reason to grant my leave.”

8.In his written submissions dated 26 August 2022, the Applicant repeated the basis of his non-refoulement claim, but failed to identify any alleged error(s) of the Judge in his decision.

DISCUSSION

9.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

10.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.The Applicant’s complaints in the Notice of Appeal and written submissions are mere general assertions without particulars, and cannot constitute valid grounds of appeal.

12.The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 15 June 2022, and has failed to raise any viable ground of appeal against the Order.

13.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person