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

CACV 273/2022

[2022] HKCA 1651

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2022

(ON APPEAL FROM HCAL 922 OF 2019)

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Before:  Hon Chow JA and K Yeung J in Court

Date of Judgment:  14 November 2022

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J U D G M E N T

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Hon K Yeung J (giving the Judgment of the Court):

1.The is an appeal[1] against the decision of Deputy High Court Judge KW Lung given on 5 July 2022 refusing leave to the Applicant to apply for judicial review (the “Judge” and the “Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board /adjudicator of the Non-Refoulement Claims Petition Office dated 18 March 2019 (the “Board”, and the “Board’s Decision”) dismissing the applicant’s appeal against the decision of the Director of Immigration dated 21 December 2017 rejecting the applicant’s non-refoulement claim (the “Director”, and the “Director’s Decision”).

Background

2.The Applicant is a national of Bangladesh.  He entered Hong Kong illegally on 7 April 2015, and was arrested by the police on the same date.  On 11 April 2015, he lodged a non-refoulement claim.  He claimed to be a member of the Bangladesh Nationalist Party (“BNP”) and was loyal to it.  The basis of his non-refoulement claim is that, if refouled, he would be harmed or killed by supporters of another political group called the Awami League (“AL”), his neighbour with whom he had a land dispute, and the Bangladesh police who had filed false charges against him.  Details of the Applicant’s claim have been summarised by the Judge at §§1-8 of the CALL-1 Form.

3.By Notice of Decision dated 21 December 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

4.The Applicant appealed against the Director’s Decision. On 18 March 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision.

5.The Board found that the Applicant was not a witness of truth.  He knew little details about BNP.  His evidence on his involvement in BNP contained significant inconsistencies.  The Board was not satisfied that the Applicant had ever been a supporter or member of the BNP, and did not accept that he became involved in disputes with members of AL because of his political involvement and influence as claimed.  The Board did not accept that the Applicant was involved in a land dispute with his neighbour, found that he had fabricated his claims that his family home was vandalised and burnt, and that he concocted a story to support his non-refoulement claim.  The Board found that there was no credible evidence to indicate that false charges had been made against the Appellant by the police or any other persons in Bangladesh. The Board concluded its findings by stating at §107 of the Board’s Decision that:

“the Board is not satisfied that the [Applicant] is a credible witness. The Board finds that the [Applicant] has fabricated his claims of being an active member of the BNP; of being involved in a land dispute with a neighbour …; of being targeted, assaulted, pressured and threatened by … members of the AL; and of having false changes made against him.”

6.Given the above, the Board was not persuaded that the Applicant had provided a truthful account of the events that led to his departure from Bangladesh (§108).  The Board concluded that his claim for non-refoulement protection failed on all applicable grounds.

The Judge’s Decision

7.On 4 April 2019, the Applicant filed his Form 86 against the Board’s Decision.

8.By reasons set out in the Form CALL-1 of 5 July 2022, the Judge refused to grant leave to the Applicant to apply for judicial review.  The reasons are as follows:

15.  In his affirmation in support of his application, the applicant submitted the grounds below.

(1)   The hearing bundle was given [to] him late and he was given the chance to make reply to submissions made by the representatives of the Director.

(2)   The Board had relied upon the source of news which is not officially recognized or it is simply hearsay. The cases relied upon are outdated.

(3)   Because of the above, the Board made groundless speculations that it is safe for him to return to his country.

…

19.  Those grounds above are not valid reasons to challenge the Board’s Decision.

20.  There is no record that the applicant had complained to the Board for the late delivery of the hearing bundle.  The Director was not represented.  Ground (1) fails.  Grounds (2) and (3) are his bare allegations without any evidence to support.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

9.Accordingly, the Judge dismissed the Applicant’s leave application.

Grounds of appeal

10.In his Notice of Appeal dated 15 July 2022, the Applicant seeks an order that the Order of the Judge dismissing his leave application be set aside, and that leave to apply for judicial review be granted.

11.As his grounds of appeal, the Applicant complains that he will face hardship if he were to be returned back to his home country, that the Board relied on “source of news” which was “not officially recognized”, or was “simply hearsay”, and that [they] have also relied on some cases which are outdated”.  He says that the “lack of credible source of information has resulted in them making groundless speculations.”

12.The applicant failed to comply with the directions made by the Registrar of Civil Appeals on 11 August 2022, repeated in the Notice of Hearing of 30 August 2022, requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.

13.The hearing date on 24 October 2022 has therefore been vacated.  The appeal has been considered on paper based upon the materials before the Court.

Discussion

14.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)).

15.In general, the assessment of evidence, country of origin information materials, 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: Re Kartini [2019] HKCA 1022.

16.The Applicant’s grounds are essentially the same as those he relied upon for leave before the Judge.  The Judge has considered them.  Relevantly the Judge has dismissed them as being the Applicant’s “bare allegations without any evidence to support”.  The Applicant has not otherwise raised any viable ground of appeal against the Judge’s Decision.

17.The Applicant’s appeal has no merits.  We accordingly dismiss the appeal.

The Applicant, acting in person.

[1]  By Notice of Appeal filed on 15 July 2022.

[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.