PAVEL GOMES v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 395 /2019

[2019] HKCA 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 395 OF 2019

(ON APPEAL FROM HCAL NO 375 OF 2018)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 19 August 2019^[1] refusing leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim. For reasons to be mentioned below, this appeal is dealt with on paper without an oral hearing.

2.  The applicant is a national of Bangladesh of 54 years old.  He entered Hong Kong as a visitor on 22 January 2006 and overstayed from 6 February 2006.  He made a claim to the UNHCR in 2006 and that application was rejected in 2007. He was arrested by the police on 26 May 2008.  On 5 February 2009, he raised a torture claim which was deemed as withdrawn on 27 November 2013 by the Director of Immigration (“the Director”) as he did not submit documents.  He failed to report for recognizance since 2 January 2014 and was re-arrested on 27 June 2015.  His non-refoulement claim was raised on 3 July 2015.  He claimed that he would be harmed or killed by some members of the Shomobai Committee (“SC”) for a loan he borrowed from the SC in the 1980s and that his cousins threatened to kill him for his conversion to Christianity in the 1990s.  He also feared that he would be arrested by the police in Bangladesh.

The Director’s decision

3.  By a Notice of Decision dated 16 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5]. 

4.  The Director held that there are no substantial grounds for believing that there will be any real and substantial risk of the applicant being harmed or killed by his cousins or people from the SC upon his return to Bangladesh. Even if assuming that the applicant would be arrested by the Bangladeshi police upon his return to his home country, the Director considered that there is nothing to suggest that fair trial concerning the case would not be given to him after the arrest.  The Director also found that the availability of reasonable protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 20 November 2017.  The Board found that the alleged trouble the applicant had from his own family was not sufficiently severe as to amount to torture for the purpose of the non-refoulement protection claim.  Moreover, the Board observed that even if the alleged incidents involving the SC people did happen, the applicant managed to evade them and he was at no real risk from late 2001 until he left Bangladesh.  Thus, it was held that he would not face any real chance of death, torture, cruel, inhuman or degrading treatment or punishment or persecution if refouled.  The Board also considered that the applicant could escape from the risk, if any, by internal relocation within Bangladesh. The Board rejected the appeal on 1 March 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 8 March 2018 to seek leave to apply for judicial review against the decision of the Board.

The judge’s decision

7.  The Judge heard the leave application on 3 September 2018.  For reasons stated in paragraphs 36 to 48 of his decision dated 19 August 2019, it was held that the applicant’s complaints were not reasonably arguable.  As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused by the judge.

The grounds of appeal

8.  The applicant filed a Notice of Appeal against the decision of the judge on 27 August 2019.  The grounds of appeal may be summarized as follows:

(1) The judge failed to show any good cause to refuse his claim (Ground 1);

(2) His life in Bangladesh is not totally safe but the judge did not listen to any points about Bangladesh at the oral hearing (Ground 2);

(3) There are error of law and procedural error.  The Director or the adjudicator did not investigate the applicant’s problem in Bangladesh^[6] (Ground 3); and

(4) He did not have a lawyer at the oral hearing (Ground 4).

Non-compliance of unless order

9.  This appeal was scheduled to be heard on 10 December 2019.  Directions were given by the Registrar of Civil Appeals on 19 September 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have the appeal disposed of on paper.  

10.  The applicant failed to lodge skeleton argument by the prescribed time (ie on or before 12 November 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. By letter dated 19 November 2019, the court informed the applicant that the hearing date of 10 December 2019 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

11.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

12.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  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.

13.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

14.  We turn to consider each of the grounds of appeal.

Ground 1

15.  The applicant contended that the judge failed to show any good cause to refuse his claim.  As a matter of fact, however, the judge has already explained the reasons for refusing to grant leave in paragraphs 36 to 48 of his decision.  The judge’s decision is well founded and the applicant failed to show that the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  This ground has no merit.   

Ground 2

16.  The applicant complained that the judge did not listen to any points about Bangladesh at the oral hearing.  In fact, at the hearing before the judge on 3 September 2019, when the judge invited the applicant to elaborate on his grounds and to give more particulars on the grounds, he submitted that he had nothing to elaborate and claimed that everything was written in his application^[7].  This ground is without basis.

Ground 3

17.  He submitted that there are error of law and procedural error in the decisions of the Director and the adjudicator as they did not investigate his problem in Bangladesh. 

18.  According to the case of Re Moshsin Ali^[8], the applicant cannot seek leave for judicial review against the Director’s decision as the decision by the Board has superseded the decision of the immigration officer and represents the final decision on the claim at the end of its processing.  As for the Board’s decision, it was supported by the fact that the applicant was never tortured or subjected to cruel, inhuman or degrading treatment or punishment by the SC or anyone else and that he was at no real risk from late 2001 until he left Bangladesh in 2005.  The applicant has failed to demonstrate that there are errors of law or procedural unfairness or irrationality in the decision of the Board.  Thus, this ground is unmeritorious.

Ground 4

19.  As for the ground relating to the lack of legal representation, the applicant already had the benefit of legal representation in presenting his case to the Director.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^[9]. Therefore, this ground is untenable.

20.  As there is no merit in any of the grounds of appeal and no prospect of success in the intended application for judicial review, we hereby dismiss this appeal.