MIA MD MOHID v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 60/2022

[2022] HKCA 730

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 60 OF 2022

(ON APPEAL FROM HCAL NO 301 OF 2019)

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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.  On 27 January 2022, Deputy High Court Judge To refused to grant leave for the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the decision on 4 February 2022.

2.  The applicant is a national of Bangladesh. He is 39 years old. He entered Hong Kong on 25 October 2011 as a visitor. He subsequently overstayed and was arrested by the police on 23 February 2015. He lodged a non-refoulement claim on 5 March 2015. His claim was made on the basis that he will be harmed or killed by members of the Awami League (“AL”) if he returns to Bangladesh because of his involvement in the rival political party, the Jamaat-e-Islami (“JeI”), and his father’s previous position as the president of the local union of JeI.

The decision of the Director

3.  The applicant’s Duty Lawyer was not available to attend the interview of the applicant with the Immigration Department on 2 January 2018. Hence, the interview was rescheduled to 19 January 2018. Before the interview started, the Duty Lawyer informed the Immigration Department that the applicant was unable to attend because of sickness. The Immigration Department later sent the applicant a list of questions to which he provided a written response.

4.  By a Notice of Decision dated 15 February 2018, the Director of Immigration (“the Director”) rejected the applicant’s claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  Taking into account the low intensity and frequency of past ill-treatment, the Director assessed that the level of risk of harm upon the applicant’s return to Bangladesh is low. Having considered the extent of his injuries sustained in the beating incident, his mode of conduct and the medical treatment he received, the Director found that the ill-treatment, whether physical or mental, inflicted upon the applicant by the Jubo League (the youth league of AL) boys did not attain the requisite minimum level of severity. The Director further considered that the applicant’s problem with the AL people is private in nature and there is no evidence to show that the state was involved in his problem or had provided any form of encouragement to those Jubo League boys or AL people in threatening or harming him. The applicant had stayed in Dhaka for three to four months after the first beating incident and there was nothing to show that he had been traced and chased by the AL people at that time. The Director held that this indicated that the intention of his enemies to cause further harm to him or to locate him is low. The Director further considered that the availability of state protection and internal relocation alternatives in Bangladesh further lowers or negates the perceived risk.

The decision of the Board

6.  The applicant appealed against the Director’s decision to the Board. He attended the hearings before the Board on 11 September and 5 November 2018. The Board considered that the AL and Jubo League members had an adverse interest in the applicant because of his father’s position in the JeI. The Board was prepared to give the applicant the benefit of doubt and accepted that there is a small though real risk that the applicant would suffer serious physical mistreatment that would constitute CIDTP[6] from those members and supporters of the AL and Jubo League if he returns to his home area in Bangladesh in the reasonably foreseeable future. Nonetheless, the Board considered that the risk of the applicant as a low-level supporter of JeI is remote as the evidence shows that the AL and other groups have targeted senior leaders and high-profile members of the JeI in recent years and the applicant’s father had passed away after the applicant left the country. The Board further assessed that it would be safe and reasonable for the applicant to relocate to a large city in Bangladesh such as Chittagong or Dhaka where he would not be at risk of being subjected to CIDTP or persecution. Under these circumstances, the Board found that the applicant is not entitled to non-refoulement protection in Hong Kong under the unified screening mechanism and rejected the appeal on 14 January 2019[7].

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 1 February 2019 to seek leave to apply for judicial review against the Board’s decision. He put forward the following grounds for the intended judicial review:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement.

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal. The applicant was not given an opportunity to make submissions in an oral hearing nor was he invited to make written submissions.

(3)  The Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(5)  The Board has significantly relied on news which is not officially recognized or is hearsay, and cases which are outdated, resulting in the Board making groundless speculations that it is safe for him to return to Bangladesh.

(6)  He lacked language assistance and legal assistance.

The judge’s decision

8.  The applicant attended the hearing before DHCJ To on 6 January 2022. He confirmed before the judge that he prepared the application and affirmation by himself, that he could read and write in English and that he understood the documents contained in the hearing bundle of his appeal before the Board.

9.  The judge found that ground (1) is not valid as there is no error of law in the Board’s decision.

10.  Ground (2) was rejected because it is totally baseless. The applicant was given the opportunity to make submissions before the Board and he did not make any request for further time to prepare his case.

11.  Ground (3) failed as the judge found that there is no error of law, procedural unfairness, unreasonableness and irrationality in the Board’s decision.

12.  The judge rejected ground (4) as the applicant failed to establish any breach of the greater duty of care owed to an unrepresented applicant by the Board.

13.  The applicant did not provide any particulars in support of ground (5) and the judge rejected this ground as it is not supported by any basis.

14.  As for ground (6), the judge considered there is no substance in the applicant’s complaint about the lack of legal and language assistance as the applicant has already had the benefit of legal representation by the Duty Lawyer and interpretation services in presenting his case to the Director. The high standard of fairness does not require that a non-refoulement claimant should have an absolute right to free legal representation and free language assistance at all stages of the proceedings. The applicant suffered no prejudice due to lack of legal representation in the process before the Board and he understood the documents in the hearing bundle.

15.  Thus, the judge concluded that there is no realistic prospect of success in the intended judicial review and dismissed the leave application on 27 January 2022.

Grounds of appeal

16.  The applicant stated the following grounds of appeal in the Notice of Appeal filed on 4 February 2022:

(1)  The applicant will face hardship if he returns to his home country.

(2)  The Board had significantly relied on the source of news which is not officially recognized or is simply hearsay. It had also relied on cases which are outdated considering the drastic changes. The lack of credible sources of information has resulted in the Board making groundless speculations.

17.  In his written submissions, he further stated that high standards of fairness are required in the determination of a torture claim on the part of the decision maker.

Legal Principles

18.  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.

19.  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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if this is a fresh application for judicial review.

Analysis and disposition

20.  The applicant’s complaint against the Board is just bare assertions without particulars or evidence in support. In particular, the applicant has not adduced any evidence to refute the Board’s findings. Furthermore, he has not put forward any reasonably arguable ground to show that the judge was wrong in refusing to grant leave for him to bring judicial review against the Board’s decision. The applicant failed to show 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.

21.  For all the above reasons, the appeal is without merit. We therefore dismiss the applicant’s appeal.