MD ALL MAMUN CHOWDHURY SHAMIM AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 369/2021

[2022] HKCA 194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2021

(ON APPEAL FROM HCAL 1784 OF 2019)

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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.  This is an appeal against the order made by Deputy High Court Judge To (“the Judge”) on 20 July 2021 refusing leave to the Applicants 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 6 June 2019. The Board dismissed the 1^st Applicant’s appeal and 2^nd and 3^rd Applicants’ appeal against the decisions of the Director of Immigration (“the Director”) dated 13 June 2017 and 19 September 2017 respectively rejecting their non-refoulement claims.

BACKGROUND

2.  The 1^st and 2^nd Applicants are Bangladeshi nationals.  The 1^st Applicant is the husband of the 2^nd Applicant.  The 1^st Applicant was arrested on 15 June 2009 for being an illegal immigrant.  He lodged a torture claim on 18 June 2009.  His claim was rejected on 18 May 2012.  His appeal against that decision was rejected on 29 November 2013. On 3 April 2017, he was informed that his case would be reviewed under the Unified Screening Mechanism on all applicable grounds other than the torture risk ground. By a Notice of Decision dated 13 June 2017, the Director rejected the 1^st Applicant’s non-refoulement claim on the following grounds: BOR 2 risk,[1] BOR 3 risk[2], and persecution risk[3] (“the Director’s June 2017  Decision”).  On 21 June 2017, the 1^st Applicant appealed the Director’s June 2017 Decision to the Board.

3.  The 2^nd Applicant married the 1^st Applicant over the telephone on 8 April 2015, while she was in Bangladesh and the 1^st Applicant was in Hong Kong.  The marriage was recognised under Islamic law in Bangladesh.  The 2^nd Applicant then came to Hong Kong on 12 May 2016 purportedly to take up employment as a foreign domestic helper, but she never reported to duty and became an over-stayer two weeks after her arrival.  On 27 February 2017, she gave birth to a son, who is now the 3^rd Applicant.  In due course, the 2^nd Applicant raised claims for non - refoulement protection for herself and the 3^rd Applicant. By a Notice of Decision dated 19 September 2017, the Director rejected the 2^nd and 3^rd Applicants’ non-refoulement claims on all applicable grounds: risk of torture,[4] BOR 2 risk, BOR 3 risk, and persecution risk (“the Director’s September 2017 Decision”).  On 27 September 2017, the 2^nd and 3^rd Applicants appealed the Director’s September 2017 Decision to the Board.

4.  In brief, the Applicants’ claims are that if refouled to Bangladesh, they will be harmed or killed by members of a political party, Awami League (“AL”), on the ground that the 1^st Applicant is a supporter of the Bangladesh Nationalist Party (“BNP”).  Details of the Applicants’ claims have been summarised by the Judge at §§6-9 of the CALL-1 Form ([2021] HKCFI 2087).

5.  On 3 September 2018, an oral hearing before the Board was held during which the 1^st and 2^nd Applicants answered the Board’s questions with the assistance of a Bengali interpreter.

6.  On 6 June 2019, the Board dismissed the Applicants’ appeal and affirmed the Director’s June 2017 and September 2017 Decisions (“the Board’s Decision”).  The Board considered the 1^st and 2^nd Applicants not to be honest or credible witnesses (see Board’s Decision at §72).  The Board found inconsistencies between the accounts of events given by the 1^st Applicant and the 2^nd Applicant.  The Board could find no evidence that the Applicants faced or would face harm in Bangladesh, nor any evidence that the 1^st Applicant was a target of AL (§86).  While it was not necessary for the Board to consider the issue of relocation since the Applicants had not established any risk of persecution, the Board considered that it would not be unduly harsh for the Applicants to relocate within Bangladesh.  The Board also considered that the 3^rd Applicant, then 2 years old, was entitled to apply for Bangladeshi citizenship by birth (§78), and should have no difficulty adapting to a life in Bangladesh with his parents and, if necessary, the support of the extended families of both his parents (§95).

THE JUDGE’S DECISION

7.  On 27 June 2019, the 1^st and 2^ndApplicants filed a Form 86 together with a supporting affirmation seeking leave to apply for judicial review of the Board’s Decision.  The Applicants did not advance any grounds in their application for leave to apply for judicial review or in the supporting affirmation.

8.  At the hearing of the application, the Judge explained the purpose and scope of judicial review to the Applicants.  Repeated attempts were made to solicit from them the grounds of their application.  The 1^st Applicant took the view that all that was required was to join the 3^rd Applicant as a party to the application, everything had been written down in the documents and they were entitled to stay because they had problems in Bangladesh.  In the absence of any specific grounds of application, the Judge considered that the court could only focus on the usual grounds of challenge in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Board’s Decision.  In relation to the 3^rd Applicant specifically, the Judge considered that he did not have a case on his own and his case stood or fell with the 1^st and 2^nd Applicants (§11).

9.  The Judge was mindful that the Board’s Decision should be examined with rigorous examination and anxious scrutiny, and was satisfied that the Board’s conclusion was utterly without fault (§12).

10.  By his decision dated 20 July 2021, the Judge granted the 1^st and 2^nd Applicants’ application to join the 3^rd Applicant as a party to the application, but refused to grant leave to the Applicants to apply for judicial review.

THIS APPEAL

11.  In the Notice of Appeal dated 29 July 2021, the 1^st Applicant wrote that “the High Court dismissed our leave to apply for judicial review, he failed to show any cause, we do not agree on his bogus arguments, we want to quash his decision”.

12.  The Applicants have not filed any skeleton submissions in support of the appeal despite paragraph 5 of the directions of the Registrar of Civil Appeals contained in a letter to the Applicants dated 26 November 2021. Accordingly, the Applicants are deemed to have waived their rights for an oral hearing, and the present appeal is determined on the basis of the written materials before this court, as stated in paragraph 6 of the said letter.

DISCUSSION

13.  No viable ground of appeal has been put forward by the Applicants.  In particular, the 1^st and 2^nd Applicants have failed to identify any error of law or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.  That being the position, their appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

14.  The 3^rd Applicant is a minor, and his claim is, in principle, separate from those of the 1^st and 2^nd Applicants.  The well-established approach of the court when considering a minor’s non-refoulement claim is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, and does not have to be repeated here.  In the present case, as observed by the Judge, the 3^rd Applicant does not have a case on his own, and his case stands or falls with the 1^st and 2^nd Applicants.  There is nothing to indicate that there exists any matter which may support potential minor-specific non-refoulement bases which were not or were not properly advanced to the Board, whether because of the absence of legal representation before the Board or otherwise.  There is also nothing to suggest that the Board failed to observe the high standard of fairness required in the consideration of the 3^rd Applicant’s claim.  The Board gave separate consideration to the 3^rd Applicant’s position (see, for example, §§78, 86 and 95 of the Board’s Decision).  The Board did not consider 1^st and 2^nd Applicants’ evidence to be credible, and rejected their claims on the facts.  In those circumstances, the 3^rd Applicant would plainly have no valid claim for non-refoulement protection.  Once the Judge came to the conclusion, correctly in our view, that the 1^st and 2^nd Applicants’ intended application for judicial review was not reasonably arguable and had no realistic prospect of success, it necessarily followed that the 3^rd Applicant’s application for leave to apply for judicial review should also be refused.

15.  In all, the Applicants have not shown any viable grounds of appeal.  Accordingly, their appeal is dismissed.

16.  For the avoidance of doubt, the absence of legal representation for the 3^rd Applicant in this appeal is treated as an irregularity without rendering his appeal a nullity.

[1]This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.

[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.