MANNAN ABDUL v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 302/2022

[2022] HKCA 1666

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2022

(ON APPEAL FROM HCAL NO 1040 OF 2019)

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JUDGMENT

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

1.  On 5 August 2022, the Applicant, acting in person, filed a notice of appeal against the order of Deputy High Court Judge To (“the Judge”) dated 15 June 2022 (“the Order”)refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 11 April 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 15 August 2018.

BACKGROUND

2.  The Applicant is a national of Bangladesh.  He entered Hong Kong illegally on 5 October 2012 and was arrested by the police on the same day.  He lodged a torture claim[1], which was rejected by the Director on 22 May 2013.  His appeal against the Director’s decision was dismissed by the Board on 4 November 2013.  On 20 March 2014, the Applicant lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by people of a political party known as the Awami League (“AL”) because of his participation in the activities of the rival Bangladesh Nationalist Party (“BNP”).  Details of the Applicant’s claim were summarised by the Judge at §§1-10 of the CALL-1 Form ([2022] HKCFI 1774).

3.  By a Notice of Decision dated 15 August 2018, the Director dismissed the Applicant’s non-refoulement claim on the following applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s decision to the Board.  On 11 April 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).  The Board’s reasons for its decision were summarised by the Judge at §§11-13 of the CALL-1 Form, as follows:

“[11] The Board noted that the Applicant was a low ranking field worker with no official position in BNP and that his problem with Mannan only started with his participation in the rally in 2012. He admitted many BNP leaders also took part in the rally, but was unaware if any of them had been subjected to threat like him. In the circumstances, the Board found it inconceivable that he would not have known if other BNP members, especially BNP leaders, had been similarly harassed and threatened. The Applicant was unable to explain why a housing minister and his brother would have picked upon a low ranking field worker like him and expended so much time and energy in threatening him all because he had participated in the rally.

[12] The Board also found it incredible that his friend Gazi would have failed to give any details of the alleged murder case against him, such as the time, location or the victim. It refused to give weight to the hearsay evidence from Gazi about the alleged false murder case. The Board inferred from the circumstances that the Applicant invented the false murder case in order to strengthen his case that his life will be in danger if he is returned to Bangladesh, not only because of the AL members’ threat but also because he will be immediately arrested and charged with murder upon his return and he will not receive a fair trial. The Board found the Applicant incredible and rejected his account as inherently improbable.

[13] For the above reasons, the Board found that the Applicant had failed to show there would be substantial grounds to believe that he would face a real risk of being killed, tortured, persecuted or otherwise harmed, if he were to be refouled to Bangladesh.  Even on his own evidence, the Applicant had only been verbally threatened and had never been physically assaulted.  In conclusion, the Board found Applicant had failed to establish that he has a valid claim for non-refoulement protection on any of the three remaining applicable grounds under the USM and dismissed his appeal.”

THE JUDGE’S DECISION

5.  On 17 April 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  The Applicant did not put forward any grounds of intended judicial review in either his Form 86 or his supporting affirmation.

6.  On 15 June 2022, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[17] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the three remaining applicable grounds under the USM for claiming non-refoulement protection, had properly referred to and correctly applied the applicable legal principles, including the standard of proof and burden of proof, and quoted relevant precedents in support. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decision in the Notice. It correctly identified the factual and legal issues involved in the claim. The Applicant’s claim is founded on the alleged threat from Mannan, his brother and their men. The Decision of the Board was based on its finding of the Applicant’s credibility and inherent probability of his case. The Board carefully weighed the evidence and assessed his credibility. It found him incredible and did not accept his evidence about the threats to his life. As the Applicant bears the burden of proving his claim, such a finding is fatal. It was on that basis that the Board found there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the remaining three applicable grounds.

[18] The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.”

THIS APPEAL

7.  On 27 July 2022, the Judge granted the Applicant an extension of time to appeal against the Order.  In his Notice of Appeal dated 5 August 2022, the Applicant put forward the following ground(s) of appeal:

“The High Court dismissed my leave to apply for judicial review. I did not agree with the High Court. The Court could not show any reason for dismiss. I will show some reason to grant my leave.”

8.  In his written submissions dated 19 August 2022, the Applicant stated that he found “too many error but the honourable judge did not find”, without identifying what the alleged error(s) may be.

DISCUSSION

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  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 (see Nupur Mst,at §14(6)).

10.  Further, the assessment of 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The Applicant’s complaints in the Notice of Appeal and written submissions are mere general assertions without particulars, and cannot constitute valid grounds of appeal.

12.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 15 June 2022, and has failed to raise any viable ground of appeal against the Order.

13.  The Applicant’s appeal has no merits, and is dismissed.