MIAH MUHAMMAD SHOHAG v. TORTURE CLAIMS APPEAL BOARD

CACV 437 /2021

[2022] HKCA 6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 437 OF 2021

(ON APPEAL FROM HCAL NO 2198 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.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 3 September 2021^[1] (“the Judge’s Decision”) refusing to grant extension of time to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) dated 26 April 2017 concerning his non-refoulement protection claim (“the Board’s Decision”).

2.  By a letter dated 14 September 2021, the applicant consented to have his appeal disposed on paper. This is our judgment.

3.  The applicant is a 38-year-old national of Bangladesh. He was arrested by the police in Hong Kong for illegally remaining and possessing a suspected false recognizance form on 11 November 2012. On 23 September 2013, he lodged a claim for protection against torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”). His CIDTP claim was taken as a non-refoulement claim and assessed on all applicable grounds upon the commencement of the unified screening mechanism.

4.  The applicant’s claim was made on the bases that (1) he would be harmed or killed by some Awami League (“AL”) people belonging to Chakma and Tripura tribes due to their hostility against the applicant’s Bengali tribe and his support of the Bangladesh Nationalist Party (“BNP”); and (2) he feared that he would be arrested and falsely accused of having been involved in a clash by the local police in Bangladesh.

The Director’s Decisions

5.  By a Notice of Decision dated 11 March 2016 (“the Director’s First Decision”), the Director rejected the applicant’s non-refoulement claim on the grounds of torture risk^[2], BOR 3 risk^[3]and persecution risk^[4].

6.  The Director considered that there were no substantial grounds to believe that there would be any real and substantial risk of the applicant being harmed or killed as alleged. The Director found that, out of the three alleged cases that the applicant feared to be falsely accused of, two were withdrawn and one did not involve the applicant. The Director also found that the applicant was not inflicted with any bodily harm in the past and that since his family, who shared the same political affiliation, could live worry free in his home country, there was no substantial ground to believe that his life would be in danger if refouled. Further, the country of origin information (“COI”) indicated that Bengali was the main ethnic group in Bangladesh. The low intensity and frequency of ill-treatment in the past indicated that the future risk of harm upon the applicant’s return to Bangladesh was not likely to materialize. In any event, the level of risk of being harmed or killed was further lowered or negated by the availability of state protection and internal relocation. Thus, the Director rejected his non-refoulement claim on the aforesaid three grounds.

7.  Further, in light of the findings in the Director’s First Decision and the applicant’s failure to adduce additional information, the Director rejected the applicant’s non-refoulement claim on BOR 2 risk^[5] in the Notice of Further Decision dated 14 March 2017 (“the Director’s Second Decision”).

8.  In this judgment, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

9.  The hearing of the appeal against the Director’s Decisions was conducted before the Board on 8 March 2017 and 10 April 2017, during which the applicant answered inquiries raised by the Board.

10.  After considering his evidence in the non-refoulement claim form and his oral testimony, the Board highlighted several material deficiencies in his claim. For example, the Board found that on the applicant’s evidence, the applicant and his family were not injured in all the alleged incidents. Further, the incidents in 2005 and 2008 happened some ten years ago and he was still able to reside in his home village long after these two incidents. It also found that the applicant’s allegation on AL’s influence was contradicted by the COI in that the BNP was the ruling party at the material time. Moreover, the Board was not satisfied with the applicant’s fear of being arrested as such allegation was vague, lacking in details and inconsistent with the objective facts. The Board also considered the state protection and internal relocation alternatives and concluded that both were available to the applicant. By the Board’s Decision, the Board rejected his appeal.

The intended judicial review

11.  The applicant filed a Form 86 and an affirmation on 11 October 2018 to seek leave to apply for judicial review against the Board’s Decision. No ground for seeking relief was mentioned in his Form 86 or his supporting affirmation of the same date.

The Judge’s Decision

12.  As the applicant did not request an oral hearing, the judge considered his leave application on the available documents. The judge found that the applicant was late by more than 14 months in taking out the leave application against the Board’s Decision and that he did not provide any cogent explanation for his delay. He also failed to advance any grounds of review. Having considered the Board’s Decision, the judge held that it had adhered to a high standard of fairness and there was no reasonable prospect of success in the applicant’s intended application. Therefore, the judge refused to grant extension of time to the applicant for leave to apply for judicial review against the Board’s Decision.

Grounds of appeal

13.  The applicant filed a Notice of Appeal against the Judge’s Decision on 14 September 2021. He argued that:

(1)  The Director failed to give proper weight to the presence of state acquiescence;

(2)  The Director, the Board and the judge failed to take such argument into account;

(3)  The Board failed to make sufficient inquires before finalizing its decision;

(4)  The Board failed to give him sufficient chance to arrange for relevant evidence to support his claim and his appeal;

(5)  The Director adopted an unfair attitude towards his case.

14.  In his written submissions of 28 September 2021, the applicant advanced the following contentions:

(1)  The Board acted in a procedurally unfair manner, contrary to the principle of high standard of fairness laid down in ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, in assessing the applicant’s credibility;

(2)  The Board and the Director violated the doctrine of reasonableness in their decision-making process as articulated in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 233;

(3)  The Board might take into account the factors listed under section 37ZT of Immigration Ordinance, Cap 115 when considering the late filing.

15.  These grounds were not raised in his original leave application and none of them are targeted at the Judge’s Decision. While the applicant seeks to challenge the judge’s failure to take into account his argument on the presence of state acquiescence, he did not in fact raise any argument on state acquiescence before the judge. Further, the Board had considered this issue thoroughly at §§49 to 53 of the Board’s Decision, and the judge found no public law errors in the reasoning. This is not a viable ground of appeal against the Judge’s Decision.

Legal Principles

16.  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.

17.  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.

18.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

19.  The applicant’s present grounds against the Director and the Board were not raised in his previous leave application. The Court of Appeal has repeatedly stressed that an appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below^[6]. Thus, the Court of Appeal would not entertain his new grounds. On this basis alone, we will dismiss the appeal.

20.  In any event, the aforesaid legal principles mandate the applicant to point out with sufficient particularity the errors allegedly committed by the judge in assessing the Board’s Decision. Plainly, the applicant has failed to advance any viable grounds of appeal against the Judge’s Decision.

21.  For all these reasons, we dismiss the appeal.