Hossain Mohammad Moner v. Torture Claims Appeal Board

CACV 362 /2023, [2024] HKCA 1097

On appeal from [2023] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 362 OF 2023

(ON APPEAL FROM HCAL NO 226 OF 2021)

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BETWEEN

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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 2 November 2023, Deputy High Court Judge Bruno Chan refused to extend time for the applicant to seek leave to bring judicial review against 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 judge’s decision on 15 November 2023.

2.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 8 August 2015 and surrendered to the Immigration Department on 13 August 2015.  He lodged a non-refoulement claim on 12 May 2016 on the basis that, if refouled, he would be harmed or killed by Sattar, his former business partner, because he failed to repay money to Sattar.

The Director’s decision

3.By a Notice of Decision dated 20 December 2018, 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.On the evidence adduced, the applicant was only assaulted once by Sattar and nothing eventful happened after the applicant moved to other places in Bangladesh.  The Director considered that the ill-treatment inflicted upon the applicant by Sattar and his men had not attained the requisite minimum level of severity and assessed that the risk of harm upon the applicant’s return is low. The Director further found there is nothing to show that Sattar has acted in an official capacity or that the applicant is a target of the Bangladeshi government.  Moreover, the Director also held that the availability of state protection and internal relocation alternatives in Bangladesh 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 26 November 2019.  The Board considered there is high probability that the applicant made up his evidence relating to the assault as there are significant inconsistencies in his evidence and he failed to give satisfactory explanation for the discrepancies.  The Board further found no evidence to support the contention that Sattar intended to kill the applicant even if either version of the incident as recounted by the applicant were true.  The Board found no evidence to show that Sattar has any political or governmental support.  Besides, the Board assessed that reasonable state protection will be available to the applicant upon his return to Bangladesh.  In conclusion, the Board held that the applicant failed to establish his claim on all applicable grounds and rejected the appeal on 30 October 2020.

The intended judicial review

6.The applicant filed a Form 86 and an affirmation on 25 February 2021 to seek leave to apply for judicial review against the decision of the Board out of time.  He stated the follow grounds for his intended challenge in his supporting affirmation:

(1)  the Board’s decision to reject the applicant’s appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(2)  the Board had unlawfully fettered its discretion by dismissing the applicant’s appeal on the grounds that they did not satisfy the requirements;

(3)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(4)  the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(5)  in dismissing the appeal, there is no indication that the adjudicator interacted with the facts of the applicant’s claim or conducted any analysis of the supporting documents or turned his mind to the grounds under consideration being the risk of violation of the applicant’s right to life under BOR 2;

(6)  the Board had significantly relied on source of news which was not officially recognized or is simply hearsay; and

(7)  the adjudicator had relied on some cases which are outdated.  Considering the dramatic changes, the lack of credible source of information resulted in groundless speculation.  

The judge’s decision

7.The applicant attended an oral hearing of his application before DHCJ Bruno Chan on 19 October 2023.  He was 3 weeks late in filing the application. He explained that he was late because he did not receive the Board’s decision sent to him by post.  The judge was not satisfied that the applicant had provided a good or valid reason for his serious delay.  Furthermore, the judge found that the applicant’s grounds are just broad and vague assertions without any particulars, specifics or elaboration.  The judge held there is no error of law, procedural unfairness nor any failure to apply high standards of fairness in the decisions of the Director and the Board or in their consideration and assessment of the applicant’s claim.  As there is no prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, the judge refused to grant extension of time and dismissed the leave application on 2 November 2023.

Grounds of appeal

8.The applicant’s grounds of appeal stated in his Notice of Appeal and the draft supporting affirmation attached to it are substantially the same as the ones he put forward in his leave application in the court below.

9.The applicant has submitted a written consent for this appeal to be disposed of on paper without an oral hearing.  Directions were given by the Registrar of Civil Appeals on 15 November 2023 requiring the applicant to lodge skeleton argument on or before 29 November 2023.  The directions provided that in the event the applicant fails to lodge skeleton argument by the prescribed deadline, he shall be deemed to have abandoned his right to rely on written submissions and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials.  The applicant has not lodged any written submissions by the prescribed time.

Legal Principles

10.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.

11.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

12.The applicant does not have any viable grounds against the judge’s decision in this appeal.  He failed to identify any particular mistakes or unfairness in the judge’s decision.  We can discern no error of law by the judge or failure to take into account relevant matters.  There is no basis to suggest that the judge was plainly wrong.

13.We therefore dismiss the appeal as it is entirely devoid of merit.

The Applicant (Appellant), acting in person