RE BADAL DAS

CACV 287/2022

[2022] HKCA 1833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 287 OF 2022

(ON APPEAL FROM HCAL NO 1027 OF 2019)

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J U D G M E N T

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

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 13 July 2022, by which the Deputy Judge refused to grant extension of time and dismissed his application for leave to apply for judicial review (“the Leave Decision”) ([2022] HKCFI 2085).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 11 April 2019 (“the Board’s 2^nd Decision”), dismissing the applicant’s petition against the decision of the Director of Immigration (“the Director”) dated 20 April 2017 (“the Director’s 2^nd Decision”) rejecting his non-refoulement claim.

3.  We heard the appeal on 24 November 2022.^[1]  After the hearing, we reserved our judgment to be handed down in writing.  This is what we do now.

Background

4.  The applicant is a national of Bangladesh.  He last arrived in Hong Kong on 17 July 2006 and was permitted to remain as a visitor until 24 July 2006.  He did not depart and overstayed since 25 July 2006.  On 3 November 2007, he was arrested by the police for overstaying in Hong Kong and was referred to the Immigration Department on 5 November 2007.  On 10 March 2010, he was arrested for breach of condition of stay by taking up unapproved employment and was convicted and sentenced to two months’ imprisonment on 13 March 2010.  On 19 April 2010, he was discharged from prison and referred to the Immigration Department.

5.  On 19 March 2009, he raised a torture claim.  With the commencement of the unified screening mechanism on 3 March 2014, his torture claim was taken to be a non-refoulement claim.  In essence, the basis of his non-refoulement claim was that he will be harmed or killed by his creditor, Jakir, given his outstanding loans.  He further claimed that as a member of Hindu minority in Bangladesh, he did not have the right to practise his religion fully and safely and he feared harm from the Muslim majority.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [9] ‑ [17] of the Leave Decision.

6.  By a Notice of Decision dated 5 May 2015 (“the Director’s 1^st Decision”), the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds including torture risk^[2], BOR3 risk^[3] and persecution risk^[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

7.  The applicant then appealed against the Director’s 1^st Decision to the Board and attended an oral hearing before the Board on 30 May 2016.  Having assessed the applicant’s evidence, the Board considered that Jakir had no intention to kill the applicant and that the alleged death threat was used as a means to press the applicant to repay the loan and not intended to be acted upon.  The Board found that the level of risk of harm inflicted by Jakir upon the applicant’s return to Bangladesh would be very low.  The Board also considered that the applicant would face no risk of harm from local Muslims in his home village.  After considering the Country of Origin information (“the COI”), the Board also found that state protection and internal relocation would be available to the applicant.  The Board thus considered that the applicant had failed to substantiate his claim on all applicable grounds and accordingly, dismissed his appeal on 16 February 2017.

8.  Meanwhile, on 28 March 2017, the Director invited the applicant to submit any additional materials or facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR2 risk[5].  As the applicant did not reply to the Director, the Director assessed his claim based on the materials previously submitted by the applicant and rejected his non-refoulement claim on BOR 2 risk by way of the Notice of Further Decision dated 20 April 2017.

9.  The applicant then petitioned against the Director’s 2^nd Decision to the Board on 2 May 2017 and attended an oral hearing before the Board on 2 November 2018. During the hearing, he contended that two men told him that his brother could not be found for a long time and that Jakir might have imprisoned or killed him.  He also claimed that in 2007, his brother paid 200,000 takas to Jakir but provided no evidence in support of his claim.  Having assessed the evidence, the Board noted that the applicant failed to provide the new information as claimed to the Director and also attached no weight to the bare hearsay information given by the applicant.  Having considered his non-refoulement claim on the basis of BOR2 risk, the Board found that the applicant would not face a real risk of being subjected to BOR2 ill-treatment upon his return to Bangladesh.  Accordingly, the Board dismissed his petition on 11 April 2019.

The Leave Decision

10.  On 16 April 2019, the applicant applied for leave to apply for judicial review against “the decision of the Torture Claims Appeal Board / Adjudicator made on 11 April 2019 dismissing the appeal by ruling that the applicant [failed] to establish a case for non-refoulement whether under the principles of Torture or BOR 2 or BOR 3 or persecution”.  No ground of review was provided by the applicant in his Form 86 or supporting affirmation. Having considered the nature of the application and issues raised as well as the papers, the Deputy Judge considered it appropriate that the applicant’s application be determined on paper.

11.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  The Deputy Judge first considered the scope of his application for leave to apply for judicial review and refused to grant extension of time or leave to amend the Form 86 to the applicant to challenge against the Board’s 1^st Decision. The Deputy Judge then considered and dismissed his application for leave to apply for judicial review against the Board’s 2^nd Decision.  His reasons were set out in detail at [6] ‑ [8] and [27] ‑ [30] of the Leave Decision:

“The scope of this application and extension of time to apply in respect of the 2017 Decision

6. Under Order 53, rule 4(1) of the Rules of the High Court, an applicant may apply for leave to apply for judicial review of the court’s decision within three months after the decision was made. By the time the Applicant filed his Form 86, he was about 23 months out of time for seeking leave to apply in respect of the 2017 Decision. The delay is very substantial. For all that this Court knew from his Form 86 and supporting affirmation, he had no explanation for the delay in seeking leave to apply in respect of the 2017 Decision. By reason of his very substantial and totally explained delay alone, extension of time will not be granted for him to apply for leave to review the 2017 Decision, however strong his complaint might otherwise be: see Po Fun Chan v Winnie Cheung.

7. Furthermore, the Applicant has advanced no arguable grounds for judicial review of the 2017 Decision. The sole ground he advanced was that he disagrees with the Board’s ‘dismissing the appeal by ruling that the Applicant fails to establish a case for non-refoulement whether under the principles of torture or BOR 2 or BOR 3 or Persecution referred to in the notices of application for leave to apply for judicial review.’ At the highest, he was seeking to challenge the finding of fact of the Board that he had failed to prove his entitlement to protection under those three grounds. As explained below in relation to his application to review the 2019 Decision, such challenge is not permissible except where the decision involves error of law, procedural unfairness or irrationality. Having rigorously examined the 2017 Decision with anxious scrutiny, the Court was satisfied that the 2017 Decision did not contain such vitiated elements. His intended judicial review of the 2017 Decision had no prospect of success.

8. For the above reasons, no leave was granted to amend this application to include a review of the 2017 Decision. This application is only restricted to the 2019 Decision.

…

Grounds for judicial review

27. The Applicant did not state any specific grounds for judicial review in the Form 86 or in his supporting affirmation. He had been invited by the Court via its letter dated 4 March 2022 to advise the Court of his first language and to file submissions. He did not respond. The letter was sent to him by post to his address as stated in his supporting affirmation dated 16 April 2019. It has not been returned through the post. There was nothing to suggest the Applicant had moved or has not received the letter.

28. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Bangladesh. That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Conclusion

29. 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 law and key legal principles relating to BOR 2 Risk ground. The Board clearly understood the burden of proof and standard of proof and had correctly identified the issues. There was nothing to suggest it had failed to observe a very high standard of fairness. In its 2017 Decision, the Board assessed the Applicant’s claim on the basis of the case as he asserted but found on the basis of credible COI that he had failed to prove the factual basis to support of his claim. It found that the risk of harm from Jakir was to be low; that there was no risk of harm from the local Muslims; and that state protection and internal relocation were viable options to prevent or avoid the harm. These findings are binding on the Applicant. Other than the hearsay evidence about his brother’s kidnap, the Applicant had not provided any additional information to support his BOR 2 Risk ground. As for the evidence about his brother’s kidnap, it was not provided before the deadline imposed by the Director. For good reasons, the Board gave no weight to that evidence, which it was entitled to. It was on that basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under BOR 2 Risk ground. 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 Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2019 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. It was utterly without fault. The proposed judicial review has no realistic prospect of success.

30.  For the above reasons, leave to apply for judicial review was refused.”

The Appeal

12.  On 26 July 2022, the applicant filed a Notice of Appeal in support of his appeal against the Leave Decision.  In his Notice of Appeal, he stated:

“… the grounds of this appeal are that the appellant will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making ground less speculations.” (sic)

13.  Pursuant to the directions made by the Registrar of Civil Appeals on 30 August 2022, the applicant lodged his written submissions on 11 October 2022.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, without specifying any intended ground of appeal.  It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

14.  We heard the appeal on 24 November 2022.  A Bengali interpreter was present to provide language assistance.  During the hearing, the applicant repeated his claim that the local Muslims would attack and torture him and that as a Hindu, he was not allowed to perform religious rituals.  He further claimed that he had problems in his home country and could not go back, and that he had lost everything in his home country by coming and staying in Hong Kong for the past 15 years.

Discussion

15.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

16.  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.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

17.  In our view, the applicant’s appeal plainly lacks merit and must fail.  The arguments raised in his Notice of Appeal and written submissions are new and not raised before the Deputy Judge.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  Further, his complaints predominately focused on the Board’s Decisions and he failed to identify with specific particulars any error in the Leave Decision.  The matters raised in his written submissions are all general and bare assertions and the applicant did not state how the legal propositions cited are relevant to his case.  Accordingly, they are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  On this basis alone, his appeal must fail.

18.  In any event, general assertions of his fear if refouled do not constitute proper grounds of appeal. Given that the applicant’s submissions during the hearing merely repeated the factual basis of his non-refoulement claim, those are plainly not proper grounds of appeal.  As repeatedly emphasised by the Court of Appeal, it is well-established that the assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director) as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13] and Re Limbu Birkhaman [2019] HKCA 50 at [11].  As noted by the Deputy Judge, there was no error of law, irrationality or procedural unfairness at any stage of the non-refoulement proceedings.  We see no basis to interfere with the Leave Decision.

19.  For the above reasons, the applicant’s appeal has no merit and we dismiss the appeal.