Bhuiyan Momin v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 327/2022

[2023] HKCA 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 327 OF 2022

(ON APPEAL FROM HCAL NO 2206 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 3 August 2022, Deputy High Court Judge K W Lung refused to grant leave for the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 17 August 2022.

2.The applicant is a national of Bangladesh. He is 35 years old. He entered Hong Kong illegally and was arrested by the police on 25 November 2013. On 27 November 2013, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the Awami League.

The Director’s decision

3.By a Notice of Decision dated 7 March 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.The Director held that the applicant’s alleged risk of harm was unsubstantiated as the applicant’s claims were unreasonable and self-contradictory. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

The Board’s decision

5.The applicant’s appeal against the Director’s decision was heard before the Board on 25 June 2018. The Board decided that no credence can be attached to anything the applicant said and any of his statements because of the significant inconsistencies, vagueness and the applicant’s failure to provide reasonable explanation. Thus, the Board concluded that the applicant does not face any real risk of harm and rejected the appeal on 20 September 2018.

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 11 October 2018 to seek leave to apply for judicial review against the decision of the Board. The applicant stated the following grounds in his supporting affirmation:

(1)  The hearing bundle was sent to him 6 days before the hearing and the documents therein are in English. He did not have sufficient time to prepare for the hearing, resulting in his being confused at the hearing.

(2)  He had answered all questions from the Board. It is unfair and unreasonable for the Board to say that his credibility was questionable.

(3)  The Board had relied upon the news which is simply hearsay or from a source which is not officially recognised. It has also relied upon outdated cases, resulting in groundless speculations.

(4)  The Board had unlawfully fettered its discretion by refusing his appeal.

(5)  The adjudicator acted in a procedurally unfair manner and the decision is unreasonable and irrational in public sense.

(6)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

The judge’s decision

7.DHCJ K W Lung dealt with the application on paper. The judge held that ground (1) fails as the applicant did not apply for adjournment of the hearing before the Board and the applicant is not entitled to free legal representation at every stage of the proceedings. Ground (2) fails as the Board is entitled to assess the applicant’s evidence in accordance with legal procedure. The judge further found that the rest of the grounds are just bare assertions or opinions without evidence in support. The judge also held there is no error of law or procedural unfairness in the Board’s decision. As the applicant failed to show any realistic prospect of success in his intended judicial review, the judge dismissed the leave application on 3 August 2022.

Grounds of appeal

8.In the Notice of Appeal filed on 17 August 2022, the applicant stated his grounds of appeal as follows:

(1)  the Board relied on news which is simply hearsay or from a source which is not officially recognised;

(2)  the applicant will face hardship if he is to return to his home country;

(3)  the Board relied upon outdated cases, resulting in its groundless speculations.

Non-compliance with order for lodging of skeleton argument

9.Directions were given by the Registrar of Civil Appeals on 7 October 2022 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date that has been fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper without further notice.

10.The appeal was scheduled to be heard on 4 January 2023. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 7 December 2022. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicant by letter dated 19 December 2022 the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal.

Legal Principles

11.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.

12.An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

13.The applicant failed to give any particulars, elaboration or evidence in support of his grounds of appeal. He also failed to identify any errors of the judge or failure to take account of relevant matters already placed before the court.

14.As the appeal is devoid of merits, we order that the appeal be dismissed.

The Applicant, acting in person