MIZANUR RAHMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 170/2019

[2019] HKCA 872

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 170 OF 2019

(ON APPEAL FROM HCAL 382 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.1.   This is an appeal by Mr Mizanur Rahman (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 4 April 2019 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

1.2.   The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB”) given on 2 March 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim. 

Background

2.  The appellant is a national of Bangladesh born on 6 August 1981 in the Bhatinbhog Village, Jainshar Post Office, Sirajdikhan Police Station, Munshigonj District, Bangladesh.  He worked as a welder in Dubai from mid 2008 to early 2012 and as a grocery shop owner in Dhaka from early 2012 to March 2013.  He entered Hong Kong illegally through Mainland China and was arrested by the police on 11 July 2013.  He raised his non-refoulement claim by way of written representation dated 15 July 2013.  Subsequently, he lodged his non-refoulement claim form and supplementary claim form dated 16 September 2013 and 20 September 2014 respectively. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-   The appellant supported the Bangladesh Nationalist Party (“BNP”) since he was in class 9 of his school.  He became an ordinary member of the party and attended rallies held by BNP on a regular basis.  The BNP lost in the national election in 2009 and the Awami League (“AL”) took over the power.

-   In early 2012, the appellant suffered nuisances caused by the AL people, for instance, non-payment of the goods taken from his grocery shop.  When he requested the AL people to make payment, he was threatened by them.

-   In mid 2012, the appellant received verbal death threat via a phone call from a person of the AL demanding him to provide goods to the AL people for free.  When he expressed to the person that he would report the death threat to the police, he received a second death threat.  The applicant was scared and did not report the death threat to the police. 

-   In end of 2012, the AL people started to exert pressure on the appellant and demanded him to join the AL because some other people would follow him to join the AL.  A group of 11 AL people in Dhaka made threats on the appellant for 5 to 6 occasions.  The appellant refused their demand.  He considered that even if he moved to another province, he would be harmed and located by the AL people.

-   In March 2013, the appellant sold his grocery shop, but he was still threatened by the AL people that he would be killed for not joining the AL.

-   Due to the disputing background of BNP and AL, the appellant believed that if he returned to his country, he would be harmed or even killed by the AL people.  He left his country on 28 June 2013 and entered Hong Kong illegally in July 2013.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3 risk” (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2 risk” (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The Director’s representative had interviews with the appellant.  The appellant had legal assistance to prepare his claim.  After the interviews, the Director concluded that the appellant had failed to make out his claim.  The Director found that there was no evidence showing that he would be personally targeted by the AL, nor the Bangladeshi government, the authorities and the ruling party, AL, had any adverse interest in the appellant.  He did not suffer any harm from the AL people or encountered any problems from the police and the Bangladeshi government.  The Director rejected the appellant’s claim for reasons set out in a decision given on 25 March 2015 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 12 May 2017 in respect of “BOR 2 risk”.

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing and the appellant was present.  At the hearing, the TCAB put the country of origin information materials to the appellant and he stated that he was safe to return to Bangladesh.  The TCAB did not accept that the AL people were still interested in locating the appellant all over Bangladesh after he closed his grocery shop in Dhaka.  The appellant also failed to give plausible responses to the TCAB’s questions.

7.2.   After examining his claim, the TCAB dismissed the appellant’s appeal for the reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found that the appellant had not been assaulted, let alone having suffered severe injury or serious harm.  He failed to establish that he had a well-founded fear that he would be subjected to persecution upon returning to Bangladesh.  He failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence.

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The appellant, however, did not set out any grounds for leave of judicial review in his Notice of Application and affirmation in support.  He only exhibited the decisions made by the Director and the TCAB together with the documents submitted by him to the Immigration Department.

The Judge’s Decision

9.  The judge had considered the appellant’s documents and determined his application by paper disposal.  As mentioned earlier, the judge refused leave for reasons set out in [10] – [15] of the Form CALL-1 ([2019] HKCFI 411).

“10. On 8 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in his Form or in his supporting affirmation of the same date in which he merely exhibited copies of the previous decisions and documents submitted by him to the Immigration Department.

11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in the decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

12. In the applicant’s case in the absence of any grounds or particulars of any error in the Board’s decision from him, and given what he had stated during his appeal hearing, the Board was in my judgment certainly entitled to arrive at its decision based on the evidence and information available before it, and I do not see any reason to reverse or interfere with the Board’s assessment of the applicant’s claim.

13. Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14. 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.

15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 9 April 2019, the appellant appealed the judge’s order to this court.  He stated the following in his Notice of Appeal:

“The [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Legal Principles

11.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”). 

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 13 June 2019 submitting that “high standards of fairness” are required for the judge to deal with his application for leave for judicial review of the appellant’s claim for non-refoulement.  

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1.   The appellant’s grounds of appeal are vague and bare assertions.  In any event, he had testified before the TCAB that it was safe for him to return to Bangladesh. He had not suffered any harm from the AL people and his evidence was unreliable.  He also did not set out why his claim should have a reasonable prospect of success.

13.2.   The appellant’s allegations had already been thoroughly examined by the TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did.

13.3.   The arguments relating to COI ignore the fact that the TCAB’s Decision was predominantly based on its finding of fact that there was no real risk of the appellant suffering any of the 4 risks referred to earlier in this Judgment⁵.

13.4.   Finally, general assertions of a blanket nature with respect to the grounds stated in the appellant’s Notice of Appeal cannot be accepted as realistic grounds of appeal.

14.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.