RE MD KYKOBAD alias KAY KOBAD

CACV 390/2019

[2020] HKCA 24

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2019

(ON APPEAL FROM HCAL 206 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr MD KYKOBAD, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 19 August 2019 refusing him leave to commence judicial review proceedings. The intended judicial review proceedings sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 6 February 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 3 August 2016 and a notice of further decision dated 19 September 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

Basis and allegations in support of NRF Claim

2.  The applicant, a national of Bangladesh now aged about 30, became a member of the Chatra Dal (“CD”), the student wing of the Bangladesh Nationalist Party (“BNP”), in 2011 while he was a first year student at the Brahmanbaria Government College and subsequently rose to the rank of the union-level general secretary of the CD in Binakuti, Brahmanbaria District, where he lived.

3.  The basis of the NRF Claim is a fear of being

(1) attacked or even killed by certain individuals from the Chatra League (“CL”), the student wing of the Awami League (“AL”), a rival political party in Bangladesh and the ruling party since 2008; and

(2) wanted in various police stations and courts throughout Bangladesh owing to a number of charges trumped up against him by his enemies in the CL/AL.  

4.  Such alleged fear is said to arise out of the following events:

(1) In the first incident in 2011, 10 to 15 CL people intercepted the applicant while he was on his way home one evening.  He recognised only 2 of these individuals: Dulal, an influential and powerful lawyer and union-level chairman of the CL, and Shamim Bhuiyan, a businessman and member of the CL at the level of the Kasba Police Station. After the applicant refused their request to leave the BNP for the AL, they beat him up with wooden sticks. The applicant was rendered unconscious by the heavy blows and strikes to his head. It took him 3 to 4 hours to come to conscious. His head bled profusely and he sustained swellings and bruises all over his body.

(2) On returning home, the applicant found his house surrounded by 30 to 40 CL people who kept yelling for him to come out. In fear of another assault, the applicant dared not leave his house to seek medical treatment. His parents had to arrange for an unlicensed “doctor” to come to the house in secret through the back door. The head wound required 14 stitches and left the applicant with a permanent 2 cm long scar on the right side of his head. The applicant does not think that he has fully recovered from the injuries that he sustained in this first incident due to lack of proper treatment as he still often experiences severe headaches, dizziness and temporary memory loss.

(3) When the applicant tried to file a complaint against his assailants with the Kasba Police Station some days later, he found that his enemies had got to the police first.  The officers on duty refused to register the applicant’s report, alleging that it was the applicant who assaulted the CL people. The applicant was even more shocked to find himself the subject of 2 complaints by Shamim Bhuiyan who falsely accused the applicant of robbery (in that he took away with dishonest intent Shamim Bhuiyan’s mobile phone) and of forcefully occupying land and property allegedly belonging to Shamim Bhuiyan. 

(4) The applicant later learnt that Azhar Kazi, the president of the CL at the level of the Kasba Police Station, had instructed the AL-controlled police not to assist the applicant.

(5) Then, in April 2012, the applicant received notice from the magistrate’s court in the Brahmanbaria District that the CL people had filed a false case against him accusing him of having kidnapped a girl.

(6) The applicant however did not attend any court hearing in respect of any of the said 3 trumped up charges against him.  He believes that a warrant of arrest had been issued against him, though he has never seen such document.

(7) Senior members of the BNP from whom he sought assistance advised the applicant to go into hiding, which he did about 3 to 4 months later by fleeing first to Dhaka to take shelter at his aunt’s place. During the 1½ months that he stayed in Dhaka, the applicant received many phone calls from Dulal and his people, threatening to kill him if he did not leave the BNP. His parents also told him that the CL people had gone to their house several times to look for him. 

(8) Although the applicant’s parents did not reveal his whereabouts, after some time, Dulal called the applicant again to say that he knew where he was. 

(9) Then, one evening, 4 to 5 CL people armed with knives and hockey sticks, one of whom the applicant recognised to be Shamim Bhuiyan, attacked the applicant from the back while he was walking back to his aunt’s house. The applicant managed to escape from his assailants’ clutches but not without sustaining bruises and swellings all over his body, which took him 10 to 15 days to recover from with the application of some ointment. The applicant did not report this incident to the police, partly because he did not belong to the area and partly due to his previous bad experience at the Kasba Police Station.

(10) After the second assault, the applicant fled to Chittagong where he stayed with his friend, Raihan, at a students’ residence in a college campus for about 2 months. 

(11) One day, Raihan told him that the CL people in his college had asked him about the applicant’s background and the reason why he went there, to which Raihan merely answered that the applicant was there because of personal matters.

(12) However, one afternoon, 10 to 12 students affiliated with the CL intercepted the applicant in the street. They first verbally abused him and asked for his background. When the applicant refused to say anything, they said that he must be involved with the BNP and punched and slapped him for 5 to 6 minutes. The applicant managed to escape with redness on his face and bruise and swellings on his upper body, which took 10 to 15 days to heal with some painkillers and ointment. The applicant suspected Dulal or Azhar Kazi had ordered this beating. He did not complain to the police at Raihan’s request because Raihan did not want to get into any trouble. He suggested the applicant should leave his place. 

(13) In consequence, the applicant fled back to Ashuganj Brahmanbaria. He first stayed with his paternal aunt for 10 to 12 days. He did not stay longer because while he was out one day to submit his application for admission to the 2^nd year program of the Brahmanbaria Government College, he received a call from his aunt that some CL people came to her place to look for him. She urged him not to go back.

(14) Sometime later, 10 to 15 people intercepted the applicant and asked him where he had been. They verbally abused him and punched and kicked him heftily all over his body. They threatened to kill him if he continued to support the BNP.  The beating only stopped upon the intervention of some fellow students. The applicant suspected that Dulal ordered this fourth attack. It took the applicant 20 to 30 days to recover from the bruises and swellings that he sustained.

(15) After this incident, the applicant went to Kaotoli to stay with his sister. After 5 to 7 days, while he was studying at his sister’s place, about 5 to 7 people affiliated with the CL and armed with hockey sticks, pistols and knives came to look for him. They just barged into the house and yelled loudly for the applicant. The applicant locked himself up in the bedroom. The CL people tried to but could not open the bedroom door. They left only after vandalising the furniture and electronic appliances in the house and threatening to kill the applicant and harm his sister if she continued to keep the applicant in the house.

(16) The applicant left his sister’s place a few days after this fifth incident. He went to Dhaka again. This time he took shelter at his maternal cousin’s place. He was so mentally tormented by death threats and harassments from the CL/AL that he became desperate to leave the country. He discussed his problem with members of his family, relatives and senior members of the BNP. They all concurred that he should leave Bangladesh.

5.  The applicant left Bangladesh for China on 2 October 2012.  He last contacted his family in Bangladesh in February 2016. He was told that the CL/AL was still looking for him and that it would not be safe for him to return to Bangladesh.

Illegal entry into Hong Kong and lodgement of the NRF Claim

6.  On 20 March 2014, the applicant entered Hong Kong illegally by boat from China. On 24 April 2014, he was arrested by the police. On 22 July 2014, he was convicted of remaining in Hong Kong without the authority of the Director after having landed unlawfully in Hong Kong, for which offence he was imprisoned until 22 August 2014. On 23 August 2014, he was released from prison and transferred to the Immigration Department. He lodged the NRF Claim on the same day. On 7 March 2016, the Director received the applicant’s non-refoulement claim form (“NCF”), which was completed with the assistance of the Duty Lawyer Service (“DLS”) which had been representing and advising the applicant since 24 December 2015.

Director’s Decisions

7.  In processing the NRF Claim, the Director’s representative(s) could not conduct any screening interview with the applicant due to his sickness. In the absence of such meeting, in addition to the information provided in the NCF, the Director assessed the NRF Claim with reference to the applicant’s written answers dated 22 June 2016, with supporting documents, to a list of written questions asked by the Director of the applicant through the DLS by letter dated 13 June 2016. Reliance was also placed on country of origin information (“COI”) pertaining to Bangladesh.

8.  The 1^st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3]. The Director found the NRF Claim to be not substantiated under any of these 3 grounds.

(1) First, the level of risk of harm from the CL/AL was likely to be low.

(a) The applicant’s work as the general secretary of the CD had been confined to joining party rallies, promoting the BNP ideology to new students at his school and lobbying for support for the BNP during election times, etc. There was no good reason why the CL/AL would specifically target the applicant having regard to his low level involvement in the CD/BNP and the fact that he had ceased working for the same.

(b) Based on the applicant’s description of the nature and extent of the injuries sustained by him in the said 5 assaults and the medical treatments he needed for such injuries, the Director did not accept that any serious physical or mental harm had ever been inflicted upon the applicant by the CL/AL; or that any such harm had met a minimum level of severity; or that the CL/AL had any real intention to kill the applicant despite the many opportunities to do so.

(c) There is no indication that the CL/AL personalities implicated by the applicant in the said 5 attacks against him were acting in any official capacity in the government of Bangladesh. The attempts to revenge on the applicant for his refusal to quit the CD/BNP had noting to do with the Bangladeshi government’s interest or policy.

(d) The applicant’s failures to seek protection in China during his 1½ years’ stay there from October 2012 to March 2014 and in Hong Kong before he completed his sentence in August 2014 are inconsistent with the behaviour expected of a person genuinely fearing for his life in his country of origin.

(2) Second, the applicant had never stood trial for any of the said false charges against him. Nor did he have any information of the progress or result of the investigation pertaining to any of those cases. Despite having allegedly been framed in these cases, the applicant was able to leave Bangladesh legally and freely without any hindrance in October 2012. Anyway, there is objective COI showing that the judiciary in Bangladesh has a fair and just system in operation with avenues for litigants such as the applicant to seek free/aided legal assistance and that judicial reforms are taking place in Bangladesh to improve the performance and efficiency of the judicial system in recent years.

(3) Third, the applicant did not complain against the individual officers at the Kasba Police Station who allegedly refused to register his complaint regarding the first attack against him by the CL people or enlist help from the police after the other attacks on the assumption that the police would not render assistance. The misconduct of some officers of the Kasba Police Station, even if true, did not represent the Bangladeshi police or state government which had not consented to, acquiesced in or even been indifferent to the acts of the CL/AL against the applicant. It was merely the applicant’s speculation that the police would not protect him should he return to Bangladesh. To the contrary, there is independent COI showing that the Bangladeshi government has taken steps to improve the performance of the police and the police reforms have been ongoing with objective indications of positive results in recent years. The availability of state protection would lower or even negate the level of risk of harm from the CL/AL (if any).

(4) Third, reasonable internal relocation alternatives (e.g. to the Khulua District, Bangladesh’s third biggest industrial city) are available to an abled-bodied and educated adult like the applicant in a country as large and populous as Bangladesh.  The applicant’s assertion that he could not relocate to other parts of Bangladesh for fear that the CL/AL people could locate him wherever he was, especially after they have firmly consolidated their power following their sweeping victory in the 2014 election, was not accepted. 

9.  Following the 1^st Director’s Decision, by a letter dated 30 August 2017, the applicant was invited to submit additional relevant facts on or before 13 September 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable grounds.  The applicant did not respond to such invitation. In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].

Appeal to Board and Board’s Decision

10.  The applicant appealed to the Board after the 1^st Director’s Decision on 12 August 2016.

11.  The Board conducted a rehearing of the NRF Claim on 8 January 2018, at which the applicant submitted 4 documents[5] and testified before and answered questions by the Board through a Bengali interpreter.

12.  The Board’s Decision covered all 4 applicable grounds for non-refoulement protection[6].

13.  The applicant was found not to have established that he would face the alleged or other harm on his return to Bangladesh that warrants non-refoulement protection. More particularly:

(1) On the credibility of the applicant and the factual matters grounding the NRF Claim, the applicant’s evidence on past torture consisted entirely of his bare assertions. There was no objective basis for the Board to make objective findings on the attacks and injuries alleged by him. See [63]. The only evidence that he would be harmed or even killed by the CL/AL people if he returned to Bangladesh was the applicant’s words and the hearsay and/or double hearsay from members of his family and friends. See [64]. The applicant’s failure to raise the NRF Claim until after he was arrested did further cast doubt on the veracity of the NRF Claim. See [80].

(2) On torture risk, there was no or no reliable evidence that the applicant had sustained severe physical or mental injuries that qualify as torture. See [69]. The attacks and threats alleged by the applicant did not amount to the infliction of the severe pain or suffering contemplated in the definition of torture in the Ordinance. See [70]. Nor was there evidence that the implicated CL/AL people were acting in any official capacity in the government. See [71]. There is also reasonable state protection available to the applicant in Bangladesh. See [79].

(3) On “BOR 3” risk, the Board found no genuine or substantial future risk of harm as the situation described by the applicant falls far short of the standard for establishing CIDTP. See [86].

(4) On persecution risk, the applicant did not have a well-founded fear that he would be subjected to persecution for a convention reason as it was purely a private dispute that Dulal and his associates wanted the applicant to leave the CD/BNP for the CL/AL. See [92] and [93].

(5) On “BOR 2” risk, there was no substantial or strong ground for believing that the applicant would face a genuine risk of being subjected to a threat to his life. See [97].

(6) The future risk of harm would be even lower with internal relocation options, which would not be unreasonable or duly harsh for someone like the applicant to pursue. See [102]. Further, there is no evidence to suggest that the CL/AL would still expend resources to locate the applicant all over the country. See [103].

Application for leave for judicial review and Judge’s Decision

14.  By a Notice of Application for Leave to Apply for Judicial Review (Form 86) issued under HCAL 206/2018 on 12 February 2018, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds which were summarised by the Judge in [23] to [26] of the Form CALL-1 dated 19 August 2019, [2019] HKCFI 2052 (“Form CALL-1”) as follows:

“23. The Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

24. The Applicant complained he lacked legal representation and language assistance after the Director's decision.

25. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.

26. The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.”

15. After hearing the application for leave for judicial review in open court on 3 September 2018 at which the applicant appeared in person with the assistance of a Bengali interpreter provided by the court, the Judge refused leave. His reasons can be found in [30]-[45] of the Form CALL-1 (omitting footnotes):

“Discussion

30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

31. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and 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.”

32. The Applicant complained there was a lack of legal representation after the Director's decision dated 3 August 2016.

33. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.  The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

34. The Applicant raised his language problem.

35. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

36. In the current application, a friend helped the Applicant to prepare Form 86 and the affirmation.  Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times.  Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

37. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

38. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

39. The Applicant said he received appeal bundle on 2 January 2018.  That was 6 calendar days (or 5 working days) prior to the Board hearing scheduled for 8 January 2018. The bundle was served on the Applicant in time.

40. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

41. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant.  The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

42. The Applicant said he answered all the questions honestly in the Board hearing. That means he knew what was asked and how to answer.  He was not confused.

43. There was no evidence the Adjudicator had taken into account outdated cases or information not officially recognised or simply hearsay.

44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.The Adjudicator had proper basis for his finding and decision which were not Wednesbury unreasonable.  He made no errors of law and there was no procedural unfairness.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator was acquainted with the facts.  He considered the Applicant’s claim carefully and applied the law correctly.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

45.     The Applicant's complaints are not reasonably arguable.  He has no realistic prospect of success in the sought judicial review.  I therefore refuse to grant him leave to apply for judicial review.”

Appeal to Court of Appeal and grounds of appeal

16.  By a notice of appeal filed herein on 23 August 2019, the applicant appealed against the refusal of leave for judicial review on 2 grounds:

(1) that he “will face hardship if he is to return back to his home country” (“Ground 1”); and

(2) that “the [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.” (“Ground 2”)

17.  In his skeleton submission dated 5 November 2019, the applicant referred to ST v Director of Immigration (sic)[7] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.  However, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of his claim.

18.  The applicant appeared in person at the hearing of the appeal on 17 December 2019. He said that he still had problems in Bangladesh and that he would return once they were resolved upon the assumption of power by the BNP, which he hoped would materialise at the next election in Bangladesh in 2 to 3 years’ time.

Court of First Instance’s role in judicial review in non-refoulement claim

19.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

20.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[8]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

21.  Applying these principles, first, as summarised in [8] and [13] above, the NRF Claim failed on the issues of assessment of risk and availability of reasonable state protection and internal relocation options at both tiers of the Unified Screening Mechanism. In particular, the applicant has been found by the Board to be facing no real or substantial risk of harm from Dulal and his CL/AL associates upon his return to Bangladesh, especially if he would relocate to another part of the country away from his hometown. The applicant’s bare assertion under Ground 1 that he will face hardship if he is repatriated back to Bangladesh goes against such findings by the Board. The question whether the applicant would be at risk if refouled is a question of fact within the province of the Board (after the Director): see [19] above. The Board heard the applicant. It provided detailed reasons in [41]-[103] of its decision, explaining why the applicant’s testimony of past attacks and injuries at the hands of Dulal and other CL/AL people is insufficient to establish any of the proscribed risks.  The applicant has not articulated before us any or any arguable errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against him, which had been overlooked by the Judge. Ground 1 is devoid of merit.

22.  Ground 2 targets the Board. As explained in [20] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. The applicant has not in either his notice of appeal or his written or oral submission before us, stated in any or any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any.

23.  Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has the applicant alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information.  Ground 2 is likewise unmeritorious.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s Decision.Accordingly, we dismiss the appeal.