SHAHID MOHAMMAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 159/2022, [2023] HKCA 681

On Appeal From [2021] HKCFI 2082

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 159 OF 2022

(ON APPEAL FROM HCAL NO 2290 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 22 July 2021[1] refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 10 August 2018.  In that decision, the Board acceded to the applicant’s withdrawal of his appeal to the Board against the decision of the Director of Immigration (“Director”) dated 18 April 2018 rejecting the applicant’s non-refoulement claim. 

Background

2.  The applicant is a Bangladeshi national born in 1971.  He previously arrived in Hong Kong on 6 November 2006 and was permitted to remain as a visitor until 8 November 2006, but he did not depart, and overstayed.  He surrendered himself to the police on 9 March 2007 and was referred to the Immigration Department on 10 March 2007. He raised a torture claim, which was rejected on 15 April 2011.  He indicated by letter dated 21 April 2011 to the Immigration Department that he wanted to go back to Bangladesh because his problem had been solved.  He was repatriated to Bangladesh on 23 May 2011.

3.  Subsequently the applicant illegally re-entered Hong Kong, apparently in around September 2014. He surrendered himself to the Immigration Department on 16 October 2014, and raised his current non-refoulement claim on 15 January 2015.

4.  As the applicant could not be contacted, he was informed by notice dated 17 May 2017 that no further action will be taken on his case.  On 19 July 2017, the applicant raised a non-refoulement claim again.  The Director decided to treat it as a subsequent claim.

5.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by the Awami League, because he was expelled from that party by a general secretary of the Awami League named Sentu who believed that he had betrayed their party.  After his apparent expulsion, the applicant became a member of the rival Bangladesh Nationalist Party.  The factual background was set out at [10.1] to [10.23] of the Director’s decision.

6.  By notice of decision dated 18 April 2018, the Director assessed the applicant’s claim on all applicable grounds and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]

7.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 10 August 2018, during which the applicant withdrew his appeal.  After consideration, the Board was satisfied that the applicant’s request to withdraw his appeal was freely sought, and that he understood the consequences of the withdrawal.  The Board was also satisfied that there was good reason for the withdrawal, namely that the applicant considered it safe to return to Bangladesh.

8.  Therefore, on 10 August 2018 the Board acceded to the applicant’s withdrawal of his appeal, and directed that the Director’s decision was confirmed.

Decision of the court below

9.  Notwithstanding his own withdrawal of the appeal, on 22 October 2018, the applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In his supporting affirmation, the applicant raised a number of grounds for judicial review, which the Judge summarized at [15] – [16] of the Form CALL-1 as follows:

“ 15. The Applicant filed a three-page affirmation dated 22 October 2018 in support of his application for leave to apply for judicial review. He said he is a supporter of BNP and that the ruling party, AL is his enemy. The thrust of his ground for application is that his family member tried to solve his problem with AL and told him that his problem had been solved and so he made an application to return to Bangladesh, but his problem had not been solved. He said the next general election will be held on December 2018 and after the general election his problem will be solved. He will return to Bangladesh after his problem has been solved. He also mentioned that AL had lodged a false case against his brother.

   16.    The fact that his brother is being ill-treated or persecuted is a separate and distinct matter from the Applicant’s non-refoulement claim.  The only ground the Applicant is relying on for his leave application is that acting on a mis-information by his family, he withdrew his appeal against the decision of the immigration officer in the Notice.  His life will be at risk if he is returned to Bangladesh.  Hence, he wished to seek leave to apply for judicial review of the Board’s decision allowing him to withdraw the appeal.”

10.  Following hearings on 14 April, 5 and 27 May, and 23 June 2021 which the applicant failed to attend, on 22 July 2021 the Judge issued his decision in writing, refusing to grant leave to apply for judicial review.  The reasons for the refusal were set out at [18] – [20] of the Form CALL-1 as follows:

“ 18. The Applicant has not advanced any proper grounds of application for leave to apply for judicial review which are consistent with the above legal principles. He has not advanced any argument that the Board erred in law, or that its decision in allowing the withdrawal was unreasonable and irrational, or in breach of the high standard of fairness owed to the Applicant, or was in any way procedurally unfair or improper. The Board acted on the information provided by the Applicant, namely that it was safe to return to Bangladesh. The Board had before it the non-refoulement claim form, the record of screening interview, the Country of Origin Information and the decision of the Director in the Notice. Having considered all these papers and the Applicant’s own assertion that it was safe to return to Bangladesh, it was reasonable for the Board to come to the conclusion that the Director’s decision that there was no merit in the Applicant’s non-refoulement claim and that it was safe for the Applicant to return to Bangladesh is correct. There is no evidence that at the time the Board was aware of the mis-information now alleged by the Applicant.

19. The underlying premise of the Applicant’s ground for judicial review of the Board’s Decision must be that the decision of the Director in the Notice was wrong in that it was the result of an error in law, unreasonableness, irrationality or procedural irregularity or breach of the high standard of fairness. The Applicant has advanced no such argument. Even on his own case, he was assaulted once resulting in no serious injury. On such evidence, there could be no valid criticism of the Director’s finding that the ill-treatment he suffered was far below the minimum level of severity such that non-refoulement protection is warranted and his risk of ill-treatment is low. On these findings, there is no factual basis to support the Applicant’s claim for non-refoulement protection.

20. Having rigorously examined the Board’s Decision, the Director’s Notice of Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the he Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  It was on that basis and the Applicant’s assertion that it was safe to return that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds and granted the Applicant leave to withdraw his appeal.  The Decision was utterly without fault.  There is no realistic prospect of success in the proposed judicial review.”

Appeal to this Court

11.  On 11 August 2021, the applicant filed in the Court of First Instance a summons and supporting affirmation to seek an extension of time to appeal the Judge’s decision.  In his decision of 9 September 2021,[6] Deputy High Court Judge K W Lung refused to extend time for appeal. 

12.  Subsequently, on 7 October 2021, the applicant filed a summons in this Court to renew his application for extension of time to appeal.

13.  On 10 March 2022, G Lam JA granted an extension of time, having regard to the fact that when the applicant first sought an extension on 11 August 2021, the time limit for appealing had not yet expired as August was not to be counted, and to this Court’s decision in Re Rana Jaswant, [2019] HKCA 102.

14.  The applicant duly filed his Notice of Appeal on 25 April 2022 against the Judge’s decision.  In the Notice of Appeal, he stated that he can show many errors and asked for a chance to show the Board’s error(s) that the Judge did not find.  However, he did not provide any details or particulars.

15.  On the same day that he filed the Notice of Appeal, the applicant agreed in writing for the appeal to be disposed of on paper without an oral hearing.

16.  On 3 and 10 May 2022, the applicant lodged his written submissions for the appeal, in which he stressed that his claim is true and that all the documents he submitted are real, and he reiterated the factual basis of his claim. However, he did not identify any specific grounds of appeal or any errors said to have been committed by the Judge or the Board.

Discussion

17.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

18.  As this Court pointed out in Re Das Purnima Rani [2019] HKCA 669 at [41], once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal.  The only option left to a claimant who has validly withdrawn his or her appeal is to make a fresh non-refoulement claim under section 37ZO(2) of the Immigration Ordinance (Cap 115) if the requirements of that section are met.

19.  In the present case, the applicant has not contested the validity of the withdrawal of his appeal and the Board’s acceptance of his withdrawal.  In his affirmation in support of his Form 86, he stated that his family had told him that his problem had been solved, but that it turned out that his problem was not solved.  However, he has not identified what information led to his conclusion that his problem was not solved, and has not explained why he did not have (or could not have obtained) such information before withdrawing his Board appeal.  In the circumstances, he has not provided an adequate basis for invalidating the withdrawal of his appeal.

20.  Nor has the applicant identified any viable ground of appeal against the Judge’s decision.

21.  For these reasons, there are no grounds to interfere with the Judge’s decision.  Accordingly, the applicant’s appeal is dismissed.

[1]  [2021] HKCFI 2082

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  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 and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[6]  [2021] HKCFI 2567