RE ALIM BADSHA

CACV 142/2019

[2019] HKCA 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 142 OF 2019

(ON APPEAL FROM HCAL 1585 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung given on 14 March 2019 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non‑Refoulement Claims Petition Office dated 30 July 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 30 July 2015 and 3 July 2017 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He first came to Hong Kong on 1 June 2006 as a visitor, made a 3-day return trip to Mainland China and returned to Hong Kong on 15 June 2006, thereby extending his visa to 28 June 2006.  He then overstayed, but was arrested only two years later on 15 July 2008.  He raised a torture claim very soon but withdrew it in April 2013 and was repatriated in May 2013. He entered Hong Kong again, but illegally, on 22 September 2014, and was arrested by the police on the same day.  He lodged a non‑refoulement claim on 26 September 2014. 

3.  The applicant’s claim was based on three sources of fear.  He claimed that if he was returned to Bangladesh, he would be harmed or killed by (i) members of the Bangladesh Nationalist Party, because he had witnessed them killing a shopkeeper in 2003; (ii) two persons from the “Awami League”, because he had joined the opposing “Jamaat‑e‑Islami” group; and (iii) the police in Bangladesh, because they sided with the Bangladesh Nationalist Party and Awami League.  The details of the applicant’s claim have been summarised by the judge at [3] to [4] of the CALL‑1 Form and recorded by the Board in [2.1] and [3.1] to [3.5] of its decision.

4.  By a Notice of Decision dated 30 July 2015, the director decided against the applicant’s claim.  This decision covered the BOR 3 risk,^[1] the persecution risk,^[2] and the torture risk.^[3]

5.  By a Notice of Further Decision dated 3 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk,^[4] and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 15 May 2018, the Board dismissed the appeal on 30 July 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non‑refoulement protection.

7.  At [15] and [16] of its decision, the Board summarised the information on country of origin and the applicant’s responses to such information.  At [36] of the Board’s Decision, the Board found that the applicant’s evidence was unreliable.  The Board was also satisfied at [22] that state protection would be available for the applicant and at [29] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 9 August 2018 which contains the following grounds for judicial review, summarised by the judge as follows:

(1) The Board failed to maintain high standard of fairness, particularly:

(a) the Hearing Bundle (in English) was sent to the applicant shortly before the appealing hearing without translation for him;

(b) the applicant did not have sufficient time to prepare for the appeal and was without assistance;

(c) the Board asked him similar questions as the Immigration officer had asked him and he was therefore unable to give accurate and clear answers, causing his evidence to be found incredible;

(d) the Board failed to make proper arrangement by providing an interpreter for him to prepare the appeal and by adjourning the hearing to another date; and

(e) the Board excused the attendance by the Director, a practice that showed that the Board would not find fault with the Director’s Decisions.

(2) The Board failed to act fairly; and

(3) The Board failed to consider the fact that the applicant was not legally represented.

9.  In the affirmation in support of the leave application dated 9 August 2018, the applicant explained that because of the late provision of hearing bundle and the lack of legal representation, he was not able to answer the Board’s questions with complete details, and said that the Board should not have questioned his credibility.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [12] to [19] of the CALL‑1 Form:

“12. The applicant appeared before me. He confirmed that he had no complaint against the Director or the Adjudicator. He was only dissatisfied with the Decisions that they made.

13. He also said that before the appeal hearing, he had his friend who explained the Hearing Bundle to him and that he had no problem at the appeal hearing.

14. In view of what he said in court, grounds (1)(a), (b) and (d) must fail.

15. Ground (1)(c) fails too because the Adjudicator was entitled to test the veracity of his evidence before the Immigration officer.

16. As to ground (1)(e), it is only his speculation without any evidence in support. If the Director considered that the applicant’s appeal was without ground, he might elect not to attend the appeal and made no submission to the Adjudicator. This ground fails.

17. Grounds (2) and (3) are the applicant’s opinion without any evidence to support.

18. The applicant fails to show that he had a reasonable chance of success in his proposed judicial review.

CONCLUSION

19.   Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review.  Accordingly, I dismiss his application.”

Grounds for appeal

11.  In the Notice of Appeal dated 22 March 2019 the applicant advanced the following grounds of appeal:

“ [T]he Plaintiff will face hardship if he is to return back to his home country and that the [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 groundless speculations.”

12.  In his skeleton submissions dated 17 June 2019, the applicant referred to a number of cases on high standard of fairness without explaining how they are relevant to his appeal.

Discussion

13.  The only ground of appeal set out in the Notice of Appeal complains of errors on the part of the Board relating to the credibility of the country of origin information that the Board took into account, which was not a ground relied upon in the form 86 or in the hearing before the judge.  In fact the applicant’s form 86 stated at [9(2)] that “the Board ought to have considered matters such as the country conditions of the applicant’s country of origin”.  It follows that the Notice of Appeal fails to identify any error on the part of the judge and purports to advance a ground that was not part of his application for judicial review.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

14.  As for the cases referred to in the skeleton submissions, the applicant did not explain how they are relevant to his appeal.  The applicant failed to identify any viable ground of appeal.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.

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

[2] 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 and its 1967 Protocol.

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

[4] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.