AL MOMIN CHOWDHURY v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 446/2018

[2019] HKCA 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 446 OF 2018

(ON APPEAL FROM HCAL 1061/2017)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 31 August 2018, refusing to grant leave to the applicant to apply for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 27 September 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 2 January 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  By a letter dated 10 December 2018, the Court notified the applicant that the hearing date on 2 January 2019 has been vacated.  However, on 13 December 2018, the Court received a letter from the applicant of the same date, requesting to restore the hearing.  He apologized for not filing the submission in time but without giving any reason why he had failed to do so.  In the absence of a proper explanation, we refuse to restore the hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged including his written submission contained in his letter of 13 December 2018 according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1963.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh.  He entered Hong Kong illegally on 15 July 2012 and was arrested by the police on 2 September 2012.  The applicant was then referred to the Immigration Department on 8 September 2012 and he lodged his non-refoulement claim on the same day.  His claim was based on his fear of being harmed, or even killed, by (i) his furious classmates of the Prime Asia International University in Dhaka; (ii) Helal, Uddin and his associates in the locality and (iii) the unknown attackers at Chittagong.  The applicant alleged those people attacked him because he converted to an atheist and abandoned the practice of Islam.  The applicant also feared his family members, the society and other followers of the Islam Religion because of his religious conversion.

5.  By a Notice of Decision dated 9 September 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 21 June 2017, the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decisions.  After an oral hearing on 7 July 2017, the Board dismissed the appeal on 7 December 2017. The Board accepted the applicant might face risk of harm in Bangladesh because of his religious belief, but rejected his account of being harassed and beaten at a forum in his local village or assaulted by unknown attackers in his bookshop in Chittagong.  Those accounts of events were implausible and inconsistent with the written evidence submitted by the applicant in support of his claim.  Further, the Board accepted that the applicant held a level of disquiet about the practice of Islam that would lead him to express such concerns with the people around him, but did not accept that he would have such pressing desire to express those beliefs that caused him in a difficult situation as claimed.   The Board concluded at [86] of its decision that having considered the applicant’s claim both individually and cumulatively but in light of the rejection of the applicant’s account of abuse and attacks due to the open discussions of his religious belief, the Board did not find any real risk of harm that would arise out of arguments on the basis of his secularist believes and concluded that the applicant failed to establish his non-refoulement claim under all applicable grounds.

THE JUDGE’S DECISION

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 12 December 2017 did not contain any grounds for seeking relief nor in his supporting affirmation contained any ground for his intended challenge other than stating that he wished to apply for judicial review of both decisions of the Director and the Board for rejecting his claim.

8.  On 31 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [19] – [20] for his refusal to grant leave :

“ 19. Given the very careful consideration of the applicant’s claim and clear findings by both the Director and the Board in particularly by the adjudicator for the latter as detailed above, and having proceeded to considered [sic] their decisions with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. In my judgment there is simply no basis or justification to interfere with their decisions.

20. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE APPEAL

9.  The applicant filed the Notice of Appeal on 11 September 2018 in which he set out the following grounds of appeal :

(1)  failing to take into account relevant facts such as the attackers would try to harm or kill him for his religious belief and abandonment of Islamic practice and Bangladesh is not a safe place for atheist and his life would be at risk if refouled.

(2)  failing to consider the concept of extended state acquiescence and COI in Bangladesh where different view of religious practice is not allowed and religious murder may happen.

(3)  failing to consider his claim under BOR 3 risk that he would face “foreseeable risk” from his university classmates, the Islamic group and the unknown attackers and the Bangladesh government cannot protect him.

10.  In the written submission lodged on 13 December 2018, the applicant just repeated the factual background of his case and his complaints against the Director’s and Board’s decisions as set out in the Notice of Appeal.

Discussion

11.  The applicant did not put forward any grounds for his intended challenge for judicial review when applying for leave before the Judge and it is not now open to him to rely on these grounds on appeal, when it was not advanced in the court below.

12.  In any event, we take the view that the Judge’s observations and findings are justified.  The Judge had correctly concluded at [19] of the CALL-1 Form that the decisions made by the Director and the Board were clear and well based, and that there was no error of law or procedural unfairness or irrationality nor any failure to adhere to the high standard of fairness in their consideration and assessment of the applicant’s claim.  In our judgment, there is no basis or justification to interfere with their decisions.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review. We dismiss the appeal accordingly.