BEPARI SUMON v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 121/2022

[2022] HKCA 1091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 121 OF 2022

(ON APPEAL FROM HCAL 2565 OF 2018)

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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.  On 12 April 2022, the Applicant, acting in person, filed a Notice of Appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 1 March 2022 (“the Order”) refusing to grant him leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 19 October 2018. The Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 November 2017.

2.  On 12 April 2022, the Applicant consented to the present appeal being disposed of on paper by the court without an oral hearing.

BACKGROUND

3.  The Applicant is a national of Bangladesh. He entered Hong Kong illegally on 14 August 2015, and was arrested by the police on the same date. On 16 August 2015, he lodged a non-refoulement claim, alleging that, if refouled, he would be harmed or killed by members of the Bangladesh Awami League. Details of the Applicant’s claim were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 544).

4.  By a Notice of Decision dated 27 November 2017, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.  The Applicant appealed the Director’s Decision to the Board. On 19 October 2018, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

6.  The Board’s reasons for its decision have been summarised in §§8-9 of the CALL-1 Form, as follows:

“[8] … He attended the scheduled hearing on 20 September 2018. However, the applicant chose not to answer the Board’s inquiries. The Board remarked several matters that required clarifications from the applicant. For example, the Board observed that the applicant was just a low tier member in the BNP; that it was impossible for him to describe so vividly about the AL members during national strike as it was crowded; that nothing happened to him for around 1.5 years before the national strike and it was implausible that the death threats would suddenly escalate [19]-[30]. The Board concluded that, in light of these inexplicable statements, the applicant simply stated that he could not remember anything [31]. Thus, the Board found that his claim was unreliable [32]. Nevertheless, it proceeded to evaluable the applicant’s claim on the applicable grounds.

[9] The Board first considered the country of origin information and concluded that state protection was available to the applicant [35]-[37]. For his claim under Torture risk, the Board found that no severe pain and suffering under the definition of torture was sustained by the applicant and that the AL members were not governmental officials. Further it was entirely a private dispute between the applicant and AL without state involvement [38]-[45]. The Board also rejected his claim under BOR2 risk as … none of the provisions in BOR2 were engaged and the applicant failed to provide additional information in support [46]-[48]. The Board also considered that the applicant did not sustain serious injuries during the claimed abduction incident and concluded that there was no real intention to harm or kill him [51]. For these reasons, the Board also rejected his claim under BOR3 risk and Persecution risk. In any event, the Board found that internal relocation was available to the applicant [56]-[60]. Thus, the Board dismissed the applicant’s appeal.”

THE JUDGE’S DECISION

7.  On 14 November 2018, the Applicant filed his Form 86 seeking leave to apply for judicial review of the Director’s Decision and the Board’s Decision. In view of the fact that the Director’s Decision had been overtaken by the Board’s Decision, the Judge amended the Form 86 so that the Board became the proposed respondent and the Director became the proposed interested party (see §3 of the CALL-1 Form). Further, as noted by the Judge at §11 of the CALL-1 Form, the Applicant, in his supporting affirmation, “simply said that he wanted to judicially review the Director’s and the Board’s decisions rejecting his claim without specifying any grounds in support of his application”.

8.  On 1 March 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[15] As the applicant elected not to give evidence. The adjudicator had told him the issues that he wanted to clarify with him. The Board was entitled to assess his evidence on that basis. On the issue of whether the Board can draw adverse inference against the applicant, resulting in discrediting his evidence as a whole under the higher standards of fairness basis, there are a number of authorities for consideration.

…

[19] The applicant is obligated under the Ordinance to cooperate with the Director and the Board for the assessment of his claim. See section 37ZA (1)(a). As the law imposes an obligation on him to make prompt and full disclosure of all material facts in support of the claim, his refusal to do so is in contravention of the statutory provision and he must bear the consequences. It is not difficult to understand the consequence of the Board not believing his evidence if he refused to answer the questions put by the Board to him. High standards of fairness gives no exemption to the applicant for the compliance of the Ordinance.

[20] I therefore consider that it is legitimate for the Board to draw adverse inference against the applicant’s credibility on the facts of his case.

[21] The applicant does not have any valid ground to challenge the Board’s Decision.

[22] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[23] There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

THIS APPEAL

9.  In his Notice of Appeal filed on 12 April 2022 against the Order, the Applicant raises the following grounds of appeal:

(1)  The Judge wrongly concluded that the Board had not erred in its decision.

(2)  The Director wrongly decided that he was not a credible witness due to discrepancies found in various statements on 14 August 2015.

(3)  There was a lack of clarity and transparency in the bundle. The Judge dismissed his claim (allegedly) because “it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly. He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood its cont.” The Applicant claims that this is an overstatement as the bundle was only interpreted to him whenever the Director found it necessary to refer to certain paragraphs or documents.

(4)  The Applicant relied heavily on the interpreter and did not have any means of finding out whether the interpreter interpreted his words correctly, and whether the officers had been noting down his words correctly. His words were wrongly interpreted and a lot of words were simply lost in translation.

(5)  The BOR 2 claim should have been assessed separately.

(6)  The Judge failed to carry out sufficient research and inquiry into COI, and failed to have regard to relevant and up-to-date COI in the consideration of his claim.

10.  In his 7-page written submissions dated 26 April 2022, the Applicant contends, under the sub-heading “Ground of Appeal”, that the impugned decision was erroneous for the following reasons:

“A) Failing to consider the clear substantive merits of both my underlying judicial review application and of my appeal; and

B) Failing to consider that the CFI and Notice of Appeal Decision was in error in substantively determining my application following my application to CFI and Notice of Appeal in the relevant circumstances.”

DISCUSSION

11.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

12.  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 of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review.

13.  Further, it is well established that assessment of the evidence, country of origin information, 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.

14.  In relation to the grounds of appeal raised in the Notice of Appeal mentioned in §9 above:

(1)  In respect of sub-paragraph (1), a general allegation that the Judge wrongly concluded that the Board had not erred in its decision is not a valid ground of appeal.

(2)  In respect of sub-paragraph (2), assessment of the evidence by the Director is a matter within his province. A bare allegation that that the Director erred in the assessment of the Applicant’s credibility is not a valid ground of judicial review, or a valid ground of appeal. Anyhow, the Director’s decision has been overtaken by the Board’s Decision. The Board examined the Applicant’s non-refoulement claim afresh, and its decision is amenable to judicial review. The Applicant’s complaint about the Director’s assessment of his credibility is neither here nor there.

(3)  In respect of sub-paragraph (3), the Judge did not in fact make the alleged finding in the CALL-1 Form.

(4)  In respect of sub-paragraph (4), it is well established that the high standard of fairness to be observed in the assessment of a non-refoulement claim does not require that interpretation service be made available to a non-refoulement claimant at all times that he wishes to have such service. The Applicant has failed to show that he has suffered any real prejudice as a result of the alleged lack or insufficiency of interpretation service. The complaints that there was wrong interpretation of what he said or that some of his words were lost in translation are bare allegations without particulars.

(5)  In respect of sub-paragraph (5), there is no legal requirement for the BOR 2 claim to be assessed separately. It was not unreasonable for the Applicant’s non-refoulement claim on all applicable grounds to be assessed together by the Director and the Board in view of the fact that the same facts were relied upon by the Applicant in support of the different grounds for non-refoulement protection.

(6)  Lastly, in respect of sub-paragraph (6), the Judge was under no duty to carry out his own research or inquiry into country of origin information. As earlier mentioned, 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. The court’s role in an application for judicial review is supervisory only. It is no part of the court’s functions to re-assess the merits of a non-refoulement claim which has already been assessed by the Director/Board.

15.  In all, the Applicant has failed to raise any viable grounds of appeal against the Order.

16.  The Applicant has, in his written submissions (at pages 4 to 7), also raised various other grounds against the Board’s Decision which the Applicant says “were submitted with [his] leave application on 14 November 2018”. However, as mentioned by the Judge at §11 of the CALL-1 Form, the Applicant did not specify any grounds in his affirmation in support of the leave application. We have examined the court file in HCAL 2565/2018, and note that in neither of the Applicant’s Form 86 nor his supporting affirmation affirmed on 14 November 2018 did he raise any, or any specific ground, of judicial review against the Boards Decision. The Applicant has given no explanation for not raising these new grounds in the application below. We can see no good or sufficient reason why the Applicant should be allowed to rely new grounds of judicial review which were not raised below bearing in mind that, as earlier mentioned, the Court of Appeal’s focus in the present appeal is on the decision of the Judge, and its role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review.

17.  In all, the Applicant’s appeal has no merits, and is dismissed.