ABUL BASHAR AKANDO v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CAMP 389/2022

[2022] HKCA 1823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 389 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 557 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.  On 28 September 2022, the Applicant took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 18 May 2022 refusing to grant him leave to apply for judicial review (“the Order”).

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 18 February 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 29 June 2018 rejecting the Applicant’s non-refoulement claim.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The Applicant is a national of Bangladesh. He entered Hong Kong illegally on 21 April 2013 and was arrested by the police on 15 August 2013. On 18 August 2013, he raised a torture claim[1], alleging that he would be harmed or killed by (i) members of the Awami League because he supported a rival political party called the Bangladesh Nationalist Party, and/or (ii) the police in respect of a false complaint which had been filed against him for political reasons. The Applicant’s torture claim was rejected by the Director on 2 January 2014. Since he did not further pursue the torture claim, the Director’s rejection of it became final. However, following the implementation of the Unified Screening Mechanism, the Applicant raised a non-refoulement claim based on the same allegations on 6 February 2014. Details of the Applicant’s claim have been summarised by the Judge at §§1-11 of the CALL-1 Form ([2022] HKCFI 1425).

5.  By a Notice of Decision dated 29 June 2018, the Director rejected the Applicant’s non-refoulement claim on the following applicable grounds: BOR 3 risk[2], persecution risk[3] and BOR 2 risk[4] (“the Director’s Decision”).

6.  The Applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§12-14 of the CALL-1 Form, as follows:

“[12] The Applicant’s case of harm was founded on False Case No. 2. The Board assessed his risk and harm on the basis that the Applicant had a warrant of arrest issued against him and that he was in fear of harm on account of his political opinion. However, the Board was not convinced that he had disclosed the true facts relating to the issue of the warrant for his arrest. Even accepting that the Applicant had been framed for attacking eight to ten AL people, the Board held that such attack would have been ‘one of the numerous mundane occurrences in the locality’. The Board therefore doubted the Bangladeshi police would have continued to look for the Applicant five years after the attack as the Applicant alleged. It also considered the results in the election in February 2009 was ‘local and transient’ and that the Applicant’s story about the AL people following him to Dhaka almost 4 years after the election in 2012 was ‘ridiculous’. The Board ‘put’ to the Applicant that he had taken part in a violent uprising against the government in which serious injuries to the police ‘or’ AL people were caused. Despite that was denied by the Applicant, the Board went on to find that the alleged pursuits by the police and the AL people could not be explained by the story advanced by the Applicant but that these pursuits might have been motivated by a different reason not disclosed by the Applicant. The Board was ‘fully satisfied that there is a warrant of arrest taken out by the police … and that it must be based on serious crime’.

[13] The Board was not satisfied that: (i) the Applicant’s fear was on account of his political opinion; (ii) his fear of persecution was well founded; (iii) he would face any genuine or substantial risk of being subjected to torture or other cruel, inhuman or degrading treatment or punishment; and (iv) he would be subject to BOR 2 Risk, if refouled to Bangladesh.

[14] Applying the law applicable to non-refoulement protection under the USM, the Board found that the Applicant had failed to discharge the burden of proving his entitlement to protection under any of the remaining three applicable grounds under the USM. Hence, the Board dismissed his appeal.”

7.  On 27 February 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. He did not give any grounds for judicial review in either the Form 86 or his supporting affirmation filed on the same date.

THE JUDGE’S DECISION

8.  On 18 May 2022, the Judge dealt with the leave application on paper, and refused to grant the Applicant leave to apply for judicial review for the following reasons:

“[16] The Applicant did not state his grounds for judicial review in the Form 86 or in his supporting affirmation. In his supporting affirmation, he only exhibited the Notice and the Decision. He had been invited by the Court via its letter dated 25 May 2021 to advise the Court of his first language and contact telephone number and to file submissions. He only responded to the first two items and exhibited a copy of the Decision. He did not file any submission.

[17] 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.

Error of Law

[18] The Court was troubled by the Board’s finding in paragraph 42 of its Decision as quoted in the penultimate sentence in Paragraph 12 above. The Board may be criticised for putting to the Applicant that he had taken part in a violent uprising against the government in which serious injuries to the police or AL people were caused and finding that the warrant was taken out based on serious crime. That allegation was denied by the Applicant. In the absence of credible contrary evidence, that denial is final. It may be argued that the Board committed an error of law in making a finding based on conjecture and not supported by evidence.

[19] The Applicant bears the burden of proving his fear and risk, even though on a very low standard. It was open to the Board to test the Applicant’s story against common sense and inherent probability and to reject his story on that basis. As noted by the Board, the Applicant never saw it fit to explain why he should go into hiding, not only by himself but with his entire family, for the kind of false case as a mundane street fighting. Proving fear or risk alone is not sufficient. The Applicant must also prove the nexus between his fear and the proscribed harm under the USM. By reason of the Applicant’s withholding from the Board the underlying cause of his fear, the Board’s finding that the alleged pursuits by the police and the AL people could not be explained by the story advanced by the Applicant could not have been faulted. The pursuits by the police or AL people might have been motivated by a different reason not disclosed by the Applicant. Whatever was the reason did not matter. It was not necessary for the Board to make a finding what that reason was because it was the Applicant who bore the burden of proving his fear was well-founded and that he would face genuine and substantial risk to his life, if refouled. The Board was entitled to come to the conclusion that the Applicant had failed to discharge the burden of proving the factual case in support of his claims for protection under the USM. Had the Board paused there, its Decision would have been un-reproachable. The additional finding that the warrant was issued for a more serious crime was unjustified and unnecessary. However, for the above reasons, that finding did not affect the validity of its Decision because by withholding the true reason for his fear the Applicant failed to prove the factual case in support of his claims for protection. The error of law, if there was one, is not material.

Discussion and conclusion

[20] 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 the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board found the Applicant not credible and that he has failed to prove the factual basis to support of his claim. It was on that basis that the Board found that he has failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds. Except for the blemish discussed in paragraphs 12, 17 and 18 above which was not material, the Court could not detect any error of law in the Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. 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 Decision could not have been faulted. The proposed judicial review has no realistic prospect of success.”

9.  On 9 September 2022, the Judge refused the Applicant’s application by summons dated 19 July 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2745).

THIS APPLICATION

10.  By a summons taken out on 28 September 2022, the Applicant applied to the Court of Appeal for an extension of time to appeal against the Order. In the summons, the Applicant stated the following:

“Please extend time for me to appeal because I failed to appeal as I did not get the High Court letter on time. I applied to extend [time] to the High [Court] but the High Court did not extend.”

11.  In his affirmation filed on 28 September 2022 in support of the application, the Applicant stated the following:

“Affirmation for extension of time to appeal as High Court did not extend time. The High Court has two decision I do not agree with them.”

12.  The Applicant has failed to lodge written submissions contrary to the directions given by the Registrar of Civil Appeals on 28 September 2022.

DISCUSSION

13.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

14.  The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

15.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

16.  Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  The Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 18 May 2022, and has failed to raise any viable ground of appeal against the Order.

18.  There is no prospect of success in the Applicant’s intended appeal.

DISPOSITION

19.  The application for extension of time to appeal is refused, and the Applicant’s summons taken out on 28 September 2022 is dismissed.