CACV 342/2024, [2025] HKCA 49
On Appeal From [2024] HKCFI 1967
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 342 OF 2024
(ON APPEAL FROM HCAL NO 205 OF 2020)
________________________
BETWEEN |
| | MILON | Applicant |
| | and | |
| | TORTURE CLAIMS APPEAL BOARD | Putative |
| | | Respondent |
| | and | |
| | DIRECTOR OF IMMIGRATION | Putative |
| | | Interested Party |
_____________________
| Before: | Hon Chow JA and Cheng J in Court |
| Date of Hearing: | 10 December 2024 |
| Date of Judgment: | 3 January 2025 |
_________________
J U D G M E N T
_________________
Hon Chow JA (giving the Judgment of the Court):
1. This is the Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 30 July 2024 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 13 January 2020, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 12 July 2019.
BACKGROUND
2. The Applicant, a Bangladesh national, is a repeated non-refoulement claimant. His previous torture claim was refused by the Director on 4 April 2011. His petition to the Board against the refusal decision of the Director was rejected on 15 August 2011. He was repatriated back to Bangladesh on 29 August 2011. He claimed to have entered Hong Kong again illegally on 21 September 2018. He was arrested by the police on 26 September 2018. On 15 April 2019, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by (i) his uncle (Roushan Ali) and cousin (Sohag) over a property dispute in his home village; and/or (ii) the local supporters of a political party called Awami League (“AL”) because he supported their rival Jamaat-e-Islami Party. Details of the Applicant’s claim have been summarised by the Judge at §§1-8 of the CALL-1 Form.
3. By a Notice of Decision dated 12 July 2019 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].
4. The Applicant appealed the Director’s Decision to the Board. On 13 January 2020, the Board dismissed the Applicant’s appeal, and affirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §12 of the CALL-1 Form, as follows:
“In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his paternal uncle over any land dispute in his home village or any threats from any AL supporters that caused him to leave his country to come to Hong Kong to seek protection that it was unable to accept that the Applicant and his family had been involved in any land or property dispute with anyone or that he had been threatened or assaulted by his paternal uncle or any AL supporters over any dispute, and concluded that the Applicant does not face any real chance of harm now or in reasonably foreseeable future from his uncle or cousin or any AL supporters upon his return to Bangladesh that his claim for non-refoulement protection failed on all applicable grounds”
THE JUDGE’S DECISION
5. On 20 January 2020, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Applicant’s grounds of intended challenge, as raised in the Form 86 and/or his supporting affirmation, and confirmed by him at the hearing before the Judge on 9 July 2024, have been summarised by the Judge at §13 of the CALL-1 Form, as follows:
“(1) That the Board was in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;
(2) that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;
(3) that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;
(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant;
(5) that the Board had significantly relied on source of news not officially recognized or were simply hearsay or outdated that resulted in groundless speculations that it is safe for the Applicant to return to his home country; and
(6) that the hearing bundle for the appeal before the Board was provided just a few days before the appeal hearing with the majority of the documents in English thereby giving the Applicant insufficient time to prepare for his appeal before the Board due to his limited skill in English that he was confused in terms of what was happening at the hearing.”
6. On 30 July 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:
“[14] [The grounds of intended challenge] are however just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what source of news relied on by the Board were not officially recognized or were simply hearsays or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.
[15] As for his last complaint of being provided with the hearing bundle for his appeal just a few days before his hearing before the Board, the Applicant did not produce any documentary evidence in support of his such assertion, but even if it were true that the hearing bundle was late, it is clear that most of the documents such as his NCF and record of his interview before the Director had in fact already earlier provided to his lawyer from DLS, and that the Applicant never raised any such issue at his appeal hearing before the Board during which he was also able to make his representations without any problem and with the assistance of an interpreter. As such I do not find any merits in this complaint of the Applicant or that it is reasonably arguable for his intended challenge either.
…
[17] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 29 – 72 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.
[18] Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in his claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.
[19] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”
THIS APPEAL
7. In his Notice of Appeal filed on 19 August 2024, the Applicant stated that he did not agree with the decision of the court, and believed that the decision was not fair. He also repeated his fear of returning to Bangladesh on the ground that he would be killed by his enemies in his home country.
8. In his 5-page written submissions lodged on 7 November 2024, the Applicant alleged, inter alia, that:
(1) The Judge did not apply the principle of irrationality to the decisions of the Director and the Board[5].
(2) The Judge did not apply high standards of fairness[6].
(3) The Judge did not apply the principle of procedural fairness, as the Director and the Board were required to give reasons to justify their decisions[7].
(4) The Judge did not carefully consider the problems he would face in Bangladesh[8].
(5) The Judge’s decision was unreasonable[9].
(6) The Board failed to give him a sufficient chance to provide evidence[10].
(7) The Board relied on unofficial and hearsay materials[11].
9. At the hearing of the present appeal, the Applicant said that currently there was no police and no administration in Bangladesh, and his uncle and cousin had become more powerful and dangerous. He invited the Court to consider the current situation in Bangladesh when determining his appeal.
DISCUSSION
10. The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration[2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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. The Court of Appeal’s role is not to examine the Board or Director’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).
11. Further, the assessment of evidence, country of origin information, 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 or procedural unfairness or irrationality in the decision of the Board: Re Kartini[2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.
12. The Applicant’s complaints raised in the Notice of Appeal and in his written and oral submissions against the decision of the Judge are general allegations without particulars, and do not constitute valid grounds of appeal against the Judge’s decision.
13. The Applicant has failed to identify or show any error in the Judge’s decision of 30 July 2024, and has failed to raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.
14. The Applicant’s appeal against the Order has no merit and is dismissed.
(Anderson Chow)
Justice of Appeal | (Yvonne Cheng)
Judge of the Court of
First Instance |
The Applicant, acting in person
[1] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[5] The Applicant’s Written Submissions, §1§, 12 and 13.
[6] The Applicant’s Written Submissions, §§2, 3 and 10.
[7] The Applicant’s Written Submissions, §4.
[8] The Applicant’s Written Submissions, §§5 and 6.
[9] The Applicant’s Written Submissions, §7.
[10] The Applicant’s Written Submissions, §9.
[11] The Applicant’s Written Submissions, §11.