MAJHARUL ISLAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 498/2021, [2024] HKCA 120

On Appeal From [2021] HKCFI 3205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 498 OF 2021

(ON APPEAL FROM HCAL NO 3004 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge P. Li (“Judge”)  on 1 November 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 1 November 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 26 February 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh born in 1984.  He entered Hong Kong as a visitor on 7 June 2006 and was permitted to stay until 21 June 2006.  However, he overstayed and was arrested on 12 March 2008.  On 15 January 2007, the applicant had registered an asylum claim with the United Nations of High Commissioner for Refugees in Hong Kong and later confirmed that the asylum claim was already closed by way of letter dated 19 March 2009.  According to the same letter, the applicant raised a claim for torture risk.  He later made a non-refoulement claim by way of letter dated 8 February 2014.  The applicant’s claim was made on the basis that if he returned to Bangladesh, his life would be endangered by a man named Rafique and his politician father named Babul, due to previous fights with Rafique.  The applicant claimed to have handicapped Rafique at the last altercation in around April 2006.  The factual background of the applicant’s claim was set out at [7(a)] to [7(k)] of the Board’s decision.

3.  By notice of decision dated 5 February 2014, the Director assessed the applicant’s claim in relation to torture risk[2] and determined it against him.  The applicant did not seek to appeal this decision.

4.  By notice of decision dated 26 February 2018, the Director assessed the applicant’s claim in relation to the remaining applicable risks and determined it against him.  Those grounds are BOR 3 risk,[3] persecution risk,[4] and BOR 2 risk.[5] 

5.  The applicant appealed to the Board against the Director’s decision dated 26 February 2018.  An oral hearing was held on 21 August 2018, during which the applicant gave evidence and answered questions from the Board.  At the oral hearing, the applicant submitted some further details in support of his claim and he reiterated that he wanted to rely on his previously submitted written claims.  In favour of the applicant’s credibility, the Board accepted that he was involved in a small informal charity while living in Bangladesh from around 2003 to June 2006. However, the Board considered that all his other claims were fabricated and exaggerated and that he was not a witness of truth.  It found that it seemed implausible and not credible that the success and work of a (part-time at most)  small-scale informal charity operated by the applicant and his four associates (who would have had daytime jobs or were students)  would encroach on the community work of a politician, especially to an extent that Rafique would need to harass the applicant and his associates to protect his politician father’s interest and demand money from them.  The Board also noted that the applicant admitted to assaulting and injuring Rafique during the last altercation, but the applicant only emphasized that he fled his home country in fear of retribution by Babul and not that he would face criminal charges for the admitted assault.  In addition, it found discrepancies from his oral submissions and his previous written submissions on whether he was armed or it was in the heat of the moment that he found a chopper nearby, when he assaulted Rafique to the alleged extent of handicapping him.  Furthermore, the Board concluded that the applicant fabricated the claims that Babul was still an influential politician with great power to locate him.  The applicant could not provide any objective evidence in support and he could not reconciliate his claims with the fact that, according to COI, Bangladesh had undergone major political restructuring that would affect whether Babul would still be in office or retaining any power or influence at all.

6.  The Board proceeded to consider the risk of harm faced by the applicant if he was refouled to Bangladesh.  It found there was in fact no real risk of harm if the applicant returned to Bangladesh, because the Board rejected the claim that Babul or Rafique would still pose a threat to the applicant after 12 years and that Babul switched allegiance to an opposing ruling political party and would continue to locate the applicant for revenge.  In addition, the applicant confirmed that he was not detained nor did he experience any problems when he departed from Bangladesh for Hong Kong, which would likely mean that the police did not issue a warrant nor were looking for him.  The Board further considered that there was no evidence to indicate that there were criminal charges against him or his associates for the admitted assault on Rafique.  As there was no evidence at all to support his claim that his associate, Shakil, was killed by Babul or that Bangladesh was a terrorist state, the Board did not accept the applicant’s claims of any fear of harm in these regards.  As to the claims that the police would not assist him without bribes, the Board found, by reference to relevant COI, that although there is corruption and dysfunction in the police force, there are efforts to reform the police force as well as avenues for seeking redress and protection, such as some efforts of the government to punish corruption.  As such, it found that the applicant should have enlisted the assistance of the police if Rafique’s behaviour was violent and disruptive at the material time.

7.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Bangladesh.  By its written decision dated 1 November 2018, the Board dismissed the applicant’s appeal in respect of all three applicable grounds and confirmed the Director’s decision dated 26 February 2018.

The Judge’s decisions in the court below

8.  On 28 December 2018, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply apologized for his dissatisfaction of the decisions of the Director and the Board, he also stated that he had a problem so he could not go back, and he annexed the Board’s decision.

9.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 1 November 2021, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [16] to [18] of the Form CALL-1 as follows:

“ 16. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duties of the TCAB.

17. The applicant had not pointed out any specific error in the decision of the TCAB. I agree with the findings of the adjudicator that the applicant was not truthful. The role of the applicant’s charity group was insignificant. There is no detail in various important aspects, such as, the reason for attacking R, the police investigation and the murder. The alleged risk of harm is not plausible.

18.  In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.”

Appeal to this Court

10.  On 9 November 2021, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were that the Judge failed to properly consider his fear and conduct sufficient inquiry into the relevant COI.  He also stated that his family members had been hiding since a few months ago, his younger brother was kidnapped last month, his enemy was still attempting to locate him, and he was not safe in his home country.

11.  The applicant has given consent in writing for this appeal to be disposed of on paper without an oral hearing, and we shall accordingly determine the appeal on the basis of the available documents and materials.  

12.  The applicant has lodged written submissions in which he stated that his family members were hidden somewhere in his hometown, his enemy was still finding him, he was not safe if he returned home, his younger brother had been kidnapped the previous month, and his family and relatives were not safe in his home country. 

Discussion

13.  In assessing the merits 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.

14.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant was not a witness of truth and all of his claims in relation to his fear of harm by Rafique and Babul were rejected, both individually and culmulatively, in their entirety.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.

15.  The applicant’s submissions that his younger brother had been kidnapped and his family members were in hiding in his home country are new assertions of facts that do not appear to have been properly raised to or considered by the Board or in the court below.  He did not provide any particulars as to the kidnapping or as to the family in hiding.  The Court of Appeal has a discretion, not to be exercised lightly, to allow new grounds to be canvassed in the interest of justice: see for example, Re MD Zahidur Rahman Manik [2018] HKCA 766 at [13].  From the decisions of the Director and the Board, it appears that the applicant had previously, and on more than one occasion, confirmed that his parents had deceased, that he has no siblings and that he has no contact with his extended family, save for his mother’s funeral.  Given such blatant factual discrepancy, we decline to consider these new assertions of facts.

16.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any reviewable error in the Judge’s decision.

17.  The applicant’s appeal is accordingly dismissed.