AHMMED ALI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 37/2022, [2024] HKCA 267

On Appeal From [2022] HKCFI 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 37 OF 2022

(ON APPEAL FROM HCAL NO 544 OF 2019)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To (“the Deputy Judge”) set out in the Form CALL-1 dated 12 January 2022, by which the Deputy Judge refused his application for leave to apply for judicial review ([2022] HKCFI 124) (“the Leave Decision”).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 18 February 2019 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 21 June 2018 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

3.  On 18 January 2022, the applicant indicated his consent in writing for this appeal to be disposed of on paper.  Accordingly, we proceed to consider this appeal on paper based on the available materials.

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 5 February 2017 and surrendered to the Immigration Department on 8 February 2017.  He was released on recognizance on 15 February 2017.  By two statements dated 18 and 26 April 2017, he lodged a non-refoulement claim on the basis that if refouled, he would be harmed or killed by members of a rival and ruling political party in Bangladesh, Awami League (“AL”), due to his support for and his role as an organising secretary for another political party, Bangladesh Jamaat‑E‑Islam Party (“JEI”).  He also claimed that he would be arrested by the Bangladeshi authorities upon refoulement.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [5] ‑ [9] of the Leave Decision.

5.  By the Director’s Decision, the Director dismissed his non‑refoulement claim on all applicable grounds including torture risk^[1], BOR3 risk^[2], persecution risk^[3] and BOR2 risk[4].  Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was not substantiated.

6.  The applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 19 October 2018 and answered questions from the Board.  The Board dismissed his appeal on 18 February 2019.

7.  In essence, having considered the oral evidence and the materials before it, the Board found material discrepancies between his evidence in his statements and his oral evidence at the hearing before the Board, one relating to his admission of stabbing an AL member as stated in his grounds of appeal / petition to the Board and the other relating to one of the attacks or attempted attacks by the AL members on him as stated in his first statement.  The Board did not accept the applicant’s explanations that the inconsistencies were either caused by the Duty Lawyer’s misunderstanding about his case or by a miscommunication between the applicant and his friend who prepared the first statements for him. The Board also did not accept that the applicant had any well-founded fear of persecution out of the attacks or attempted attacks by the AL members.  Nor would the applicant face any genuine and substantial risk of life or being subject to torture or ill-treatment in Bangladesh.  His fear of the warrants of arrest issued against him after a due process of judicial proceedings would not assist him in his claim.  The Board concluded that the applicant failed to substantiate his claim on the applicable grounds and dismissed his appeal.

The Leave Decision

8.  On 26 February 2019, the applicant filed his Form 86 and supporting affirmation, applying for leave to apply for judicial review against the Board’s Decision.  He did not advance any grounds of review in either his Form 86 or supporting affirmation.  Neither did the applicant request an oral hearing.  Yet, in his statement filed in response to the court’s request for all supporting documents, he advanced the following grounds in support of his application, as summarised by the Deputy Judge at [18] of the Leave Decision:

“(1) the Board was unreasonable in making speculative findings in assessing his risks;

(2) the Board failed to properly consider and / or assign weight to the Country of Origin Information and failed to discharge its duty of joint endeavour; and

(3) the Board made mistakes of fact and / or failed to take a relevant factor into consideration, namely that his risk of harm emanates from his political opinion generally.”

9.  By the Leave Decision, the Deputy Judge dismissed his application for leave to apply for judicial review.  His reasons were set out in detail at [19] ‑ [33] of the Leave Decision.

10.  In gist, the Deputy Judge found that there was no substance in any of the grounds of review advanced by the applicant.  The Deputy Judge found that the Board did not engage in speculation, but was entitled to make findings of facts and draw inference of facts based on the available evidence as the primary decision-maker in the applicant’s claim.  The Deputy Judge noted that although the Country of Origin information (“COI”) had little relevance in this case where the applicant had failed to prove his fear, the Board referred to the COI and satisfied itself that there was no information to support the applicant’s assertion that the AL members could locate him even if he relocated to other part of Bangladesh or that the warrants and judgment issued against him were based on a false charge.  The Deputy Judge also found that the applicant’s complaint as to the Board’s lack of joint endeavour was a mere allegation without any evidence in support.  As to the third ground, the Deputy Judge noted that the assertions put forward by the applicant in his statement were copied from another application which had no relevance to or bearing on his complaint. Accordingly, leave to apply for judicial review was refused.

The Appeal

11.  On 18 January 2022, the applicant filed a Notice of Appeal without any supporting affirmation to appeal against the Leave Decision.  In his Notice of Appeal, his grounds of appeal are essentially these: (a) the Deputy Judge was wrong in concluding that the Board did not make any error in the Board’s Decision; (b) the Director wrongly adjudicated, which the Board confirmed, that he was not a credible witness; (c) the hearing bundle lacked clarity and transparency and was not translated to him; (d) the interpreter wrongly translated his words; (e) the Director failed to consider his case afresh and if necessary, re-assess his claim under the BOR2 risk ground, similar to the case of HCAL 36/2016; and (f) the Deputy Judge failed to carry out sufficient research and inquiry into COI and to take into account the up-to-date COI in consideration of his claim and the COVID-19 pandemic situation.  The applicant also sought costs of the appeal against the Board and the Director.

12.  Pursuant to the directions of the Registrar of Civil Appeals dated 18 January 2022, 7 February 2022 and 7 April 2022, the applicant lodged his written submissions on 12 April 2022.  In those submissions, after repeating his personal background and procedural history of his non‑refoulement claim, he listed out several grounds against the Board’s Decision, which could be summarised into the categories of procedural unfairness and irrationality[5].  Insofar as the challenge against the Leave Decision is concerned, the applicant repeated that the Deputy Judge failed to carry out sufficient research and inquiry into COI and to take into account the up-to-date COI[6]. He contended that there was COI showing fraud and prison conditions in Bangladesh, but did not state how it was relevant to his claim[7].  The applicant also argued that the Deputy Judge failed to comprehensively consider the lawfulness or fairness of decision-making in judicial review, but without giving any particulars[8].

13.  In his written submissions, the applicant also sought to submit to this Court two new “certificates” to show his position as an organising secretary of JEI, his good character and the risk of being harmed or killed by the authorities if he was refouled to Bangladesh[9].  However, given that these new documents were never submitted to the Director, the Board and the Deputy Judge, and there is no good reason why they were not obtained and provided at least to the Deputy Judge, this Court would not receive and consider them as part of the evidence relied on in support of this appeal.

Discussion

14.  The relevant legal principles governing appeals in non‑refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

15.  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 the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

16.  In light of the above, it is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

17.  Bearing these principles in mind, we are of the view that this appeal has no merit.

18.  First, the grounds against the Leave Decision in the applicant’s Notice of Appeal and written submissions are bare and general assertions.  They did not identify any errors with sufficient particularities in the Leave Decision and they are not proper grounds of appeal: Re Farrukh Zaib [2020] HKCA 408 at [28].  Further, we are satisfied that the Deputy Judge’s reasons in dismissing the applicant’s leave application are sufficient and thorough.  The applicant simply failed to point out why the Deputy Judge was wrong in so holding.  These are therefore not viable grounds.

19.  It is also trite that assessment of evidence, COI materials and risk of harm are primarily matters within the province of the Board (and the Director) as primary decision makers.  This 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  The applicant’s complaint that the Deputy Judge had failed to conduct research on COI or take into account COI in assessing his application is devoid of merit.  Nor does the applicant’s challenge to the Board’s finding on the credibility of his case have any substance.  As earlier mentioned, the Board was entitled to make its own findings of facts and on the applicant’s credibility based on the available evidence.  Upon assessment of the totality of evidence, the Board already found that there was no factual basis to support the applicant’s non-refoulement claim under any of the applicable grounds.  There is nothing amiss arising from the Board’s finding of facts in the Board’s Decision.

20.  Second, the remaining grounds and arguments advanced by the applicant against the Board’s Decision in the Notice of Appeal and the written submissions are new and were not argued before the Deputy Judge. Neither did he complain about the hearing bundle nor the issue of the interpreter before the Board or the Deputy Judge.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance would not generally be entertained: Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

21.  Third and in any event, we have reviewed both the Board’s Decision and the Leave Decision and the reasons they gave for their decisions.  We see no errors of law, or mistakes of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Leave Decision.

22.  For the reasons given above, the applicant’s appeal has no merit and we dismiss the appeal, with no order as to costs.[10]