Hossain Shakhawat v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 365/2023, [2024] HKCA 171

On Appeal From [2023] HKCFI 2665

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 365 OF 2023

(ON APPEAL FROM HCAL NO 1404 OF 2019)

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BETWEEN

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of Deputy High Court Judge K W Lung (“the Judge”)  dated 2 November 2023 (“the Order”)  refusing to grant him leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 21 May 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 11 July 2018.

BACKGROUND

2.The Applicant is a national of Bangladesh.  He entered Hong Kong illegally via Mainland China, and was arrested by the police on 14 February 2016.  On 3 March 2016, he lodged his non-refoulement claim on the basis that, if refouled, he would be harmed or killed by members of the Bangladesh Chhatra League (“CL”), a political organisation associated with the Awami League, arising from a dispute relating to the Applicant’s attempt to start a business involving the purchase from a garment factory of leftover fabrics which a member of CL claimed were within the domain of CL.  Details of the Applicant’s claim have been summarised by the Judge at §§1-4 of the CALL-1 Form.

3.By a Notice of Decision dated 11 July 2018 (“the Director’s Decision), 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 to the Board.  On 21 May 2019, the Board dismissed the Applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons were summarised by the Judge at §§7-10 of the CALL-1 Form:

“[7] The applicant appealed the Director’s Decision to the Board. On 24 Apri1 2019, the Board conducted an oral hearing for his appeal, during which he elected to give evidence.

[8] The Board recapped the applicant’s claim and his personal background [9] – [36]. In essence, the Board found the applicant had failed to prove the facts of his claim, as inconsistencies were found amongst his testimonies [38]. These were exemplified by the following findings of Board, such as: (i)  the applicant would unbelievably be willing to remain home after the retaliation against the CL and only left after getting beaten up [40] – [42]; (ii)  he claimed he continued to suffer harm from the CL, but the business deal with the garment factory had ceased and he was beaten at his own home for his retaliation attack; hence there should no longer be a problem for the CL [44]; (iii)  there was no need for him to flee Bangladesh as the perceived harm was localized at his home village and he was able to sufficiently and safely move around outside his home area [45]; and (iv)  based on credible and objective country of origin information and the rejection of the version of events with the CL, the Board did not accept the letter from a member of the Bangladesh Nationalist Party who purported to show the applicant was in danger as he was a supporter of the party [46] and [47].

[9] The Board nevertheless proceeded with the applicant’s claim under the applicable grounds of non-refoulement protection [50] – [90]. Having considered the evidence, the Board found the applicant’s claim under each of the aforesaid grounds to be unsubstantiated [95] and further held that internal relocation to other regions of Bangladesh would not be unreasonable or unduly harsh [94].

[10]  In light of the above findings, the Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.”

THE JUDGE’S DECISION

5.On 23 May 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  In the Form 86, the Applicant made some general complaints about breach of procedural fairness on the part of the Board.  He amplified those complaints in his affirmation filed on the same date.  The Judge summarized the Applicant’s complaints at §12 of the CALL-1 Form, as follows:

“(1)  The bundle of hearing was delivered to him a few days before the Board’s hearing and the documents were in English. He did not have sufficient time to prepare has case. Nor did he have interpretation service. He was therefore confused at the hearing. However, he had answered all the questions put to him by the Board. But the Board challenged his credibility.

(2)  The Board had failed to notify him of the Board’s Decision by phone despite his special request.

(3)  The Board had relied upon source of news which is not officially recognized or it is simply hearsay. It had also relied on outdated cases. All of these resulted in the Board’s speculations that if is safe for him to return to his country.

(4)  It is unfair for there being no screening process for this BOR 2 risk assessment.

(5)  The Board had not been to his country to understand the situations there and therefore it had come to wrong decisions.”

6.The Judge held a hearing of the leave application on 7 August 2023 in view of the Applicant’s request for an oral hearing.  On 2 November 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[16] The grounds he had raised before me do not assist him. According to the Board’s Decision, the Board had considered the issue of internal relocation and had also discussed this issue with the applicant. Having considered that he was safe living in Dhaka and Chittagong and he would be safe to relocate to those cities if he returns to Bangladesh. [94] The information from his friend is only hearsay information which cannot be verified. It is not a valid ground to challenge the Board’s Decision.

[17] The grounds as raised by the applicant in his affirmation do not assist him for his application. Ground (1)  fails as he had not raised this issue with the Board for more time and, yet, he was able to answer all the questions put to him by the Board. The fact that he did not have interpretation service is not a valid ground as he is not entitled to such service at all stages of his application. He had already had duty lawyer service at the screening stage. Ground (2)  fails as the Board does not have statutory duty to notify him by phone upon request. He was not prejudiced in any event. Ground (3)  is only his bare assertion without any evidence in support. Ground (4)  is a non-point because there had been screening process for the other risks, with the same factual background and there is simply no prejudice to him. Ground (5)  fails because it is unnecessary for the adjudicator to go to his country physically in order to understand his situation in his country. He may rely upon the country of origin information, which he did in this case.

[18] The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

THIS APPEAL

7.In his Notice of Appeal filed on 15 November 2023, the Applicant raised the following grounds of appeal:

“The High Court Decision is not correct. There is a lot of error but the High Court did not find. I will show many error”. [sic]

8.On 15 November 2023, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

9.In the Applicant’s written submissions dated 28 November 2023, the Applicant repeated his fears of being refouled back to Bangladesh, and stated that he was not satisfied with the decision of the High Court.  He failed, however, to identify any error in the Judge’s decision.  He also alleged that there was no hearing in the High Court.  This allegation is plainly incorrect.

DISCUSSION

10.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’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)).

11.Further, the assessment of evidence, COI, 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.

12.The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.  We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

13.The Applicant’s appeal against the Order has no merit and is dismissed.

The Applicant, acting in person