ADHIKARI PABITTRA CHANDRA v. TORTURE CLAIMS APPEAL BOARD/NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 406/2018

[2018] HKCA 999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 406 OF 2018

(ON APPEAL FROM HCAL 351/2018)

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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 Josiah Lam (“the Judge”) on 13 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 18 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 21 December 2018).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged 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 1847.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh.  He entered Hong Kong illegally on 3 February 2013 and was arrested by the police on 5 February 2013.  On 9 February 2013, he raised his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by members of Awami League (“AL”) because he was a member of Bangladesh Nationalist Party (“BNP”).

5.  By a Notice of Decision dated 27 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 2 risk, BOR 3 risk and persecution risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s decision.  After an oral hearing on 1 December 2017, the Board dismissed the appeal on 9 February 2018.  The Board found at [27] to [34] of its decision that there were implausible and inconsistent features in the applicant’s allegations that he received death threats from members of AL and he was targeted for persecution given the fact that he was not a prominent member of BNP and his story was not supported by any credible evidence.  The Board did not accept the applicant’s bare assertion that the Bangladesh police had connived with AL and therefore would not protect him.  Further, the Board shared the Director’s view that it would not be unduly harsh or unreasonable for the applicant to relocate to another area of Bangladesh to avoid future harm or threats if he were to return to his country.  As such, the Board confirmed the decision of the Director and found that the applicant had 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 6 March 2018 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant made the following complaints :

(1)   there were errors of law in dismissing his claim;

(2)   failure to conduct sufficient and independent assessment of COI;

(3)   cherry-picking information in making the decisions;

(4)   failure to properly consider the concept of extended state acquiescence;

(5)   wrongly classifying his predicament as a private dispute and not taking into account of his political view as a BNP member.

8.  On 13 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 [29] – [38] for his refusal to grant leave :

“ Discussion

29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

30. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

31. The Applicant complained the Director and the Adjudicator wrongly classified his predicament as a private dispute and not on account of his political view as a BNP member.

32. Even on the Applicant's own account of events, both the Director and the Adjudicator found the alleged enemies were merely a local AL group troubling the Applicant. There was no evidence that the complained situation was part of a class conflict or persecution.

33. The Applicant complained the Director and the Adjudicator failed to properly consider the concept of extended state acquiescence.

34. The immigration officer found the Applicant failed to seek assistance from the Bangladesh police or authorities. There was no evidence the police or authorities were unable or unwilling to discharge their duties or would tolerate any unlawful and abusive behaviour as a systematic practice. There was no indication the Bangladesh state was involved in or indifferent to or encouraging the Applicant's alleged enemies. The officer was satisfied reasonable state protection was available to the Applicant.

35. The Adjudicator did not accept the Applicant’s claim that the Bangladesh police had connived with AL and therefore would not protect him.

36. Both the Director and the Adjudicator had proper basis for their findings. There was really no state acquiescence of any kind.

37. The Applicant's other complaints were vague. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator. Each of them had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

38. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

THE APPEAL

9.  The applicant filed the Notice of Appeal on 21 August 2018 in which he set out the following grounds of appeal :

“ I cannot go back to my country at this moment. Please help me to stay in Hong Kong until my problem is solved.”

DISCUSSION

10.  The applicant has failed to advance any substantive ground of appeal.  In any event, as the Judge pointed out, the applicant’s complaints were vague and lacked the support of evidence.  The Judge had rightly found at [37] of the CALL-1 Form that the Director and the Board had proper basis for their assessment, findings and conclusions and had achieved the high standard of fairness in assessing the applicant’s non-refoulement claim.  We do not find anything amiss from the Judge’s findings.

11.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the Judge that leave to apply for judicial review should not be granted.

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