RE SUMON

CACV 144/2019

[2019] HKCA 935

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 144 OF 2019

(ON APPEAL FROM HCAL NO. 1592 of 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”) given on 13 March 2019 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 13 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 16 December 2016 rejecting his non-refoulement claim.    

2.  The applicant is a Bangladeshi national.  He came to Hong Kong on 19 June 2006 and was permitted to remain as a visitor until 3 July 2006.  He overstayed and was arrested by the police on 15 July 2006.  He lodged a torture claim on 18 July 2006.  It was rejected by the Director in April 2012, and his petition against the decision was also dismissed.  On 26 May 2015, the Court of First Instance allowed the applicant’s application for judicial review, and remitted his claim to the Director for reconsideration.  The applicant’s claim was assessed as a non-refoulement claim under the unified screening mechanism. 

3.  The applicant’s claim is based on his fear of being: (i) harmed or killed by supporters of Bangladesh Nationalist Party (“BNP”) because his father refused to join the party, and (ii) arrested by the police for a murder accusation against him.  His case was set out in details in [9] of the decision of the Director.  In gist, the applicant’s father was an official of Awami League Party (“AL”), and was well respected in his village.  In 2005, after he refused BNP’s invitation to join the party, he began to receive death threats.  In January 2006, the police falsely accused the applicant and his father of a murder, because of which the applicant’s father was dismissed from AL.  Afterwards, the BNP people started looking for the applicant, assaulted him and made death threats through his mother and family members.  In April 2006, the applicant’s father went missing.  Fearing for the applicant’s safety, his family members arranged for him to leave Bangladesh for Hong Kong.  The applicant claims that the police had issued a warrant of arrest against him for the murder case.  

4.  By the decision dated 16 December 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], BOR 2 risk[3] and persecution risk[4] grounds.

5.  The applicant appealed the Director’s decision to the Board, which heard the appeal on 20 April 2018.  The applicant did not attend the hearing.  By a decision dated 13 July 2018, the Board dismissed the appeal.  For the reasons set out in [13] to [21] of the decision, the Board did not attach any credence to the applicant’s claim that he came to Hong Kong to seek international protection, and found the applicant to have failed to establish a real risk of being persecuted, tortured or otherwise subject to cruel, inhumane or degrading treatment or punishment in Bangladesh.  The Board further found reasonable relocation alternatives were available to the applicant.  Having regard to the applicable law and principles, the Board concluded that the applicant failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed his Form 86 together with a supporting affirmation on 9 August 2018 seeking leave to apply for judicial review against the decision of the Board.  The applicant relied on the following grounds to seek relief:

(1)  The Director only gave him the hearing bundle for the appeal some six days before the hearing.  He did not have sufficient time to prepare for the hearing.

(2)  The documents in the hearing bundle were written in English without translation in his language.  He was confused about the procedure of the appeal hearing. 

(3)  The Board had relied on the source of news which was not officially recognized, was hearsay or outdated.

7.  At the applicant’s request, the Judge heard the leave application at a hearing held on 1 February 2019.  By the Form CALL-1 dated 13 March 2019, [2019] HKCFI 588, the Judge refused to give leave to apply for judicial review, and gave his reasons at [11] to [14] as follows:

“11. The applicant appeared before me. He said that the Immigration officer had given him 7 days to obtain the documents. But he was unable to obtain them. However, he did nothing within these 7 days. He confirmed that he did not attend the appeal hearing at the appointed time. He said that it would not be useful even if he attended because the result would be the same. He was able to read the Hearing Bundle himself but some parts of it he did not understand. He had got his friend to explain to him.

12. It is obvious that the Board refused his appeal on the basis that he had no factual basis in support of his claim. There is simply no merit in any of his grounds above.

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

14. 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.”

8.  The applicant filed a notice of appeal together with an affirmation on 25 March 2019.  The applicant relied on two grounds of appeal as follows:

(1)  The Judge erred in law in holding there was no state acquiescence or involvement.

(2)  The Judge failed to give detailed reasons for his decision.

9.  In his written submission lodged on 9 July 2019, the applicant quoted passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and also decisions on Wednesbury unreasonableness.  He submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.  The written submission further referred to section 37ZT of the Immigration Ordinance, Cap. 115, and contended that in dealing with late filing of notice of appeal, the Board may only take account of the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.       

10.  We heard the appeal on 5 August 2019.  At the hearing, the applicant asked to be given more time because (i) his application to the Director to remain in Hong Kong as the dependant of his wife who is a Hong Kong Permanent Resident is pending; and (ii) he is waiting for document(s) to come from Bangladesh to support his case. 

11.  In respect of (i), the applicant accepts, as he has been advised by lawyer acting for him in the dependant application, his application to remain as his wife’s dependant is a separate matter that has no bearing on the present appeal.  As for (ii), the applicant contended that the document would show there was another case against him in his home country, and he could provide a copy of the document within seven days.  Although we had given the applicant seven days to provide the document, he had not lodged any document with the court.

12.  On the two grounds of appeal contained in the notice of appeal, we are of the view that they are unarguable.  The first ground is misplaced in that the Judge did not make any reference to the issue of state acquiescence as the issue was not raised by the applicant in his Form 86 and supporting affirmation.  As to the second ground of appeal, the Form CALL-1 had given a broad indication of the Judge’s reasons for refusing the applicant’s application.

13.  With regard to the complaint in the written submission that the Board had not properly assessed the applicant’s credibility, this is a new ground not raised in the Form 86 and supporting affirmation.  In any event, this ground has no merit.  At [13] of its decision, the Board pointed out that because the applicant did not attend the oral hearing, it had not been able to evaluate the credibility of his claim.  In [14] to [16] of the decision, the Board went on to note that the AL is currently in power in Bangladesh, and that the applicant had delayed in raising a torture claim after he came to Hong Kong, which although was not determinative of the claim, had adversely affected the credibility of his claim.  These are matters that the Board, as the primary decision-maker, was entitled to take into account and form a view on.  We see no proper basis for the Court to interfere with the Board’s assessment of the applicant’s claim.       

14.  The rest of the written submission has no appreciable relevance to the applicant’s claim and appeal. 

15.  For the above reasons, the appeal has no merit.  Accordingly, we dismiss the appeal.