MD SARWAR ALAM PARVEZ v. TORTURE CLAIMS APPEAL BOARD

CACV 281/2024, [2024] HKCA 1037

On appeal from [2024] HKCFI 1188

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 281 OF 2024

(ON APPEAL FROM HCAL NO 1585 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan given on 2 May 2024 refusing leave to 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 said decision on 11 July 2024.

Background

2.  The applicant, aged 48, is a national of Bangladesh. He arrived in Hong Kong on 16 October 2006 as a visitor and subsequently overstayed. He was arrested by the police on 18 February 2009 and lodged his CAT claim on 20 February 2009. His claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by local supporters of the Bangladesh Nationalist Party (“BNP”) because he was affiliated with a rival party ie Bangladesh Awami Jubo League (“AL”) by reason of him being the driver of the general secretary of AL viz Mirza Azam (“Azam”). Eventually, his CAT claim was dismissed by the Director of Immigration (“the Director”) on 15 November 2012. Afterwards, he lodged a claim for non-refoulement protection on the same basis.

The decisions of the Director and the Board

3.  The Director considered the applicant’s non-refoulement claim on all remaining applicable grounds other than torture risk including BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4]. The Director rejected his claim by a Notice of Decision dated 24 April 2018.

4.  In his Decision, the Director took into account all the relevant circumstances of the applicant’s claim and found no substantial grounds for believing that there would be any real risk of him being harmed or killed by those local BNP supporters upon his return to Bangladesh due to the low intensity and frequency of past ill-treatment from them. The Director also found there was no evidence of any real intention of them to harm or kill him or any political reason for them to target him for harm as their intention was to go after his leader Azam and given the applicant was only his driver with no official post in AL. In any event, in the absence of any official involvement, state or police protection would be available to the applicant and that reliable and objective Country of Origin Information (“COI”) showed that reasonable internal relocation alternatives were available.

5.  The applicant appealed against the Director’s Decision to the Board. He attended the hearing before the Board on 16 November 2018 to give evidence and answered questions.

6.  In its decision, the Board found material inconsistencies and discrepancies in the applicant’s evidence such that it doubted the credibility of his claim of fear of harm from those local BNP supporters that caused him to flee his country. It also found there was no reliable evidence of any real intention of those BNP people to harm or kill him when their real target was Azam and that he was just the driver. The Board found his credibility was further undermined by his failure to raise his claim upon first arriving in Hong Kong until more than 2 years later and only after his arrest. The Board thus concluded there was no reliable evidence that the applicant had faced any real risk in the past or that he would face any real risk of any significant form of harm upon his return to Bangladesh. The Board therefore on 31 May 2019 dismissed his appeal on all applicable grounds and confirmed the Director’s Decision.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 11 June 2019 seeking leave to apply for judicial review against the decision of the Board. He did not put forward any grounds in his Form or affirmation.

The judge’s decision

8.  DHCJ Bruno Chan considered the leave application on paper as the applicant did not request for an oral hearing.

9.  As the applicant did not clearly and properly identify any error of law, irrationality or procedural unfairness in his process before the Board or in the Board’s decision, the judge found there was no reasonably arguable basis for his intended challenge. The judge concluded that there was no prospect of success in the intended judicial review and dismissed the leave application on 2 May 2024.

10.  Upon the application by the applicant, the judge granted an extension of time to appeal to the applicant on 11 July 2024[5].

Grounds of appeal

11.  In the Notice of Appeal, the applicant only stated that he wanted to appeal, without putting forward any specific grounds of appeal.

Non-compliance with order for lodging of skeleton argument

12.  Directions were given by the Registrar of Civil Appeals on 28 August 2024 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made it clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

13.  The appeal was scheduled to be heard on 23 October 2024. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 25 September 2024. As the order of the Registrar was not complied with, the hearing date was vacated pursuant thereto. By letter dated 10 October 2024, the court informed the applicant that the hearing had been vacated and that his appeal would be dealt with on paper by the Court of Appeal.

Analysis and disposition

14.  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.

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, 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.

16.  In this appeal, the applicant did not provide any grounds of appeal. He thus failed to demonstrate that the judge had made errors of law, failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  There is no merit in the applicant’s appeal and we dismiss it accordingly.