MOHAMMED BADAL alias RASEL KHAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 304/2024, [2024] HKCA 1038

On appeal from [2024] HKCFI 1949

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 304 OF 2024

(ON APPEAL FROM HCAL NO 1731 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 K W Lung given on 26 July 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 30 July 2024.

Background

2.  The applicant, aged 57, is a national of Bangladesh. He last entered Hong Kong illegally on 1 March 2016 and surrendered to the Immigration Department on 22 March 2016. He lodged a non-refoulement claim on 26 July 2016. His claim was made on the basis that if he returned to Bangladesh, he would be harmed or killed by Kamal, a local leader of the Awami Legaue (“AL”), because the applicant was unable to repay a loan to Kamal and he belonged to a rival party viz Bangladesh Nationalist Party (“BNP”).

The decisions of the Director and the Board

3.  The Director considered the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  The Director rejected his claim by a Notice of Decision dated 24 August 2018. The Director was of the view that (i) the low frequency and severity of past ill-treatment received by the applicant indicated that his perceived risk of harm was not as imminent and substantial as claimed; (ii) state protection would be available to him; (iii) internal relocation would be viable; and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk, Persecution risk or Torture risk.

5.  The applicant then appealed against the Director’s decision to the Board. He attended the hearing before the Board on 14 December 2018. The Board noted that the applicant gave generally consistent evidence, but had doubts towards his credibility in light of the contradicting evidence about his contact with AL. In any event, given the previous action by Kamal and the fact that the applicant was merely an ordinary BNP member, the Board considered that the applicant would not face a genuine and substantial risk of being seriously harmed or killed. Furthermore, state protection and internal relocation were also available according to the country of origin information. Based on such findings, the Board concluded the applicant failed to meet any of the requirements under all applicable grounds. The Board therefore on 14 June 2019 dismissed his appeal and confirmed the Director’s Decision.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 24 June 2019 seeking leave to apply for judicial review against the decision of the Board. In the Form 86, he put forward the following grounds for his intended challenge:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that it did not satisfy the requirements.

(2)  The adjudicator acted in a procedurally unfair manner in dealing with his appeal.

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

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

(5)  The applicant was not given an opportunity to put forward submissions in the oral hearing nor was he invited to submit written submissions. There was no opportunity to reply to the Director’s submissions.

(6)  The Board made groundless speculations that it was safe for the applicant to return to his country of origin by relying on sources of news which were not officially recognised or were simply hearsay. The Board also relied on cases which were outdated.

The judge’s decision

7.  The applicant attended the hearing before DHCJ K W Lung on 29 May 2024. Surprisingly, as recorded in the judge’s decision at paragraph 17, the applicant said he did not consider that the Board was wrong.

8.  In any event, the judge held that the applicant’s grounds and submissions were only bare assertions or personal opinions without any evidence in support, and were not valid reasons to challenge the Board’s decision. The judge concluded that there was no realistic prospect of success in the proposed judicial review and dismissed the leave application on 26 July 2024.

Grounds of appeal

9.  The applicant stated the following grounds of appeal in his Notice of Appeal:

(1)  The applicant would face hardship if he were to return to his home country.

(2)  The Board made groundless speculations by relying on sources of news which were not officially recognised or were simply hearsay. The Board also relied on cases which were outdated.

Non-compliance with order for lodging of skeleton argument

10.  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.

11.  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

12.  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.

13.  The role of the court in an application for leave for judicial review is not to rehear the appeal to the Board or to provide a further avenue of appeal from the Board. The court should not usurp the role of the Board. Assessment of evidence, Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness, irrationality or other public law errors committed by the Board.

14.  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.

15.  The applicant’s grounds in this appeal are just bare assertions without evidence in support. The applicant failed to show the judge has made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  For the above reasons, there is no merit in the applicant’s appeal. We therefore dismiss it accordingly.