ALIM MD ABDUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 589/2021

[2022] HKCA 879

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 589 OF 2021

(ON APPEAL FROM HCAL NO 2747 OF 2018)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 16 December 2021, Deputy High Court Judge KW Lung refused the applicant’s application for leave to seek 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 judge’s decision on 28 December 2021.

2.  The applicant is a national of Bangladesh. He is 41 years old. He was arrested by the police on 14 February 2016 on suspicion of being an illegal immigrant. He admitted he entered Hong Kong illegally by boat on that day. He raised his non-refoulement claim on 5 March 2016 on the basis that he would be ill-treated or even killed by members of the Awami League (“AL”) because he belonged to Jamate-Islam Party or the Bangladesh Nationalist Party and refused to pay extortion money to them.

The Director’s decision

3.  The Director was of the view that the applicant’s level of risk of serious harm from the opposing political parties was low. Given the alleged threats received from the AL, the applicant should have relocated to other places in Bangladesh but chose not to do so. Furthermore, members of the AL did not confront the applicant in hospital while he was there for about a month. The Director was of view there is no evidence that the applicant was facing genuine and substantial risk of harm from the AL if he is returned to Bangladesh. The Director also held there was availability of state protection from the official reports produced by various overseas government agencies. The Director considered there was no risk of persecution of the applicant in Bangladesh and that he failed to establish a personal and real risk of being arbitrarily deprived of his life. Moreover, the Director held that internal relocation was not unreasonable to the applicant, which further negates the perceived risk.

4.  Therefore, by a Notice of Decision dated 14 December 2017, the Director of Immigration (“the Director”) rejected the applicant’s claim under all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4], and persecution risk[5].

The Board’s decision

5.  The applicant appealed against the Director’s decision to the Board and was requested to attend a hearing. However, the applicant stated in writing he did not wish to attend the hearing because he was suffering from depression as a result of his detention. The Board duly explained to the applicant the consequences of being absent at the hearing and requested him to confirm it remained his wish not to attend after considering the Board’s letter. The applicant responded he “fully understood” and requested that a decision be made on his appeal without a hearing. The Board therefore assessed and decided his appeal on the materials before it.

6.  The Board considered the applicant was not a witness of truth because there were inconsistencies and unexplained incidents in his evidence. Without an explanation from the applicant, the inconsistencies could not be resolved. Therefore, the Board rejected the applicant’s claims and dismissed the appeal on 28 November 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 3 December 2018 to seek leave to apply for judicial review against the decision of the Board. The applicant put forward the following grounds as summarised by the judge at §13 of his decision:

8. “…[the applicant] considers that the decisions of the Director and the Board are wrong. He insists upon his right to life under Article 28 of the Basic Law and Article 2 of the Bill of Rights. He cites a case where an illegal immigrant was repatriated but was killed in his country. The administration of his own country is incompetent and corruptive. Further the Director has failed to attain high standard of fairness required by the Wednesbury test.”

8.  As for the applicant’s affirmation, he simply annexed the decision of the Director and the hearing bundle before the Board. As he did not request an oral hearing, DHCJ Lung considered the application on paper.

The judge’s decision

9.  The judge reviewed both the decisions of the Director and the Board, and decided that the applicant failed to show any error of law, procedural unfairness or any failure to apply high standards of fairness in the decisions. The judge concluded that the applicant’s intended challenge does not have any prospect of success and dismissed the leave application on 16 December 2021.

Grounds of appeal

10.  In the Notice of Appeal, the applicant only stated that he wants to challenge the decision. He did not give any particular grounds for the challenge. As for his written submissions, he reiterated the problems he faced in his home country and submitted that the Director and the Board did not correctly consider his claims.

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.  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. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

13.  In the present appeal, the applicant failed to demonstrate that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong in dismissing his leave application. The judge has provided detailed reasons for the decision and his decision is well founded.

14.  There being no valid grounds of appeal, we dismiss the appeal accordingly.