BASHU SHING v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

CACV 523/2019

[2020] HKCA 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 523 OF 2019

(ON APPEAL FROM HCAL NO 1087 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.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 6 November 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant was born in 1979 and is a national of Bangladesh.  He arrived in Hong Kong on 8 October 2006 with permission to remain as a visitor up to 22 October 2006.  He overstayed and was arrested by the police on 22 February 2008.  On 2 October 2008, after being released on recognizance, he requested not to be returned to Bangladesh as he would not be safe there since someone wanted to kill him.  He lodged his claim for non-refoulement protection on 28 April 2014.

3.  The applicant’s claim was based on the fear that, if refouled, he would be at risk of being killed by a man called Bijoy Hajra (“Bijoy”) whom he stood against in a local election.  He also claimed that as a Hindu, he would be at risk of being attacked by Muslims.  The brief facts of the case were summarized by the Judge in [1] to [8] of the CALL-1 form ([2019] HKCFI 2356).

4.  The Director of Immigration (“the Director”) assessed the applicant’s claim on grounds including the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].  By a Notice of Decision dated 12 September 2014, the Director determined the claim against the applicant.

5.  By a Notice of Further Decision dated 9 May 2017, the Director rejected the applicant’s claim after taking into consideration the BOR 2 risk[4].

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  A hearing was scheduled on 17 May 2017.  The applicant attended the hearing but did not wish to give evidence or call witnesses and was content for the case to be decided on the basis of the papers.

7.  The Board rejected the applicant’s appeal by its decision dated 29 May 2018 (“the Board’s Decision”).  The Board found that there is no threat to the applicant’s life or freedom on account of his being a member of the Hindu faith; that it was highly unlikely that Bijoy would wish to have the applicant killed simply because Bijoy had to bribe some voters in 2004; that although the applicant might face criminal proceedings and be remanded in custody in Bangladesh, the prison conditions in Bangladesh were basically adequate; and that in any event, the applicant could safely relocate to somewhere in Bangladesh that was away from his home town.

The Deputy Judge’s decision

8.  The applicant filed a Form 86 on 13 June 2018.  The Form 86 contained no ground for seeking relief.  In the affirmation in support of the leave application dated the same date, the applicant advanced the following:

(a)  lack of legal representation for his appeal before the Board which was unfair;

(b)  lack of language assistance in his appeal to the Board;

(c)  lack of assistance when he made his claim under BOR 2 risk in that no one explained to him what BOR 2 risk meant and that he was not legally represented.

9.  The application for leave to apply for judicial review was listed for hearing on 11 July 2019.  The applicant attended the hearing and made oral representations.  A Bengali interpreter was present at the hearing to assist the applicant and the Judge.

10.  The Judge gave the following reasons in refusing leave to apply for judicial review at [15] to [21] of the CALL-1 form:

“15.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

16.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was given every opportunity to testify and make representation in his appeal hearing before the Board with the assistance of an interpreter but which he elected not to do so.  As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

17.  As for his complaint under Ground (2) of not being provided with language or interpretation assistance for his appeal to the Board, it is clear that he was assisted by an interpreter at his appeal hearing before the Board during which he declined to give any evidence or to answer questions from the adjudicator, and in the absence of any particulars or specifics to demonstrate that the basis of his claim may have been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

18.  Regarding his complaint under Ground (3) of not being given legal assistance for his claim under BOR 2 risk, similarly as noted above that there is no absolute right to legal representation at all stages of his proceedings, and as he never raised any issue with his claim under BOR 2 risk during his oral hearing before the Board when he chose not to give any evidence or answer any question from the Board, and up to now he has not provided any additional facts relevant to the assessment of his BOR 2 risk. Based on existing materials and the case advanced by the Applicant, the assessment of BOR 2 risk would be the same as the BOR 3 risk, the persecution risk and the torture risk, and there is simply no basis to challenge the Director’s Further Decision, nor do I find any merit in this complaint of the Applicant.

19.  Furthermore, the fact that the Applicant may have been abused by some Muslims in one single incident in his home district does not in my view constitute a sufficient basis to challenge the Board’s decision that he failed to establish a well-found fear of persecution by the Muslim population upon his return to Bangladesh, as it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being harmed or subjected to torture upon his return to his home country: see Re RS CACV 206/2012, 20 August 2013;and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018, 2 August 2018.

20.  The fact that it has been established by both the Director and the Board in their decisions 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 Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

21.  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.”

The appeal

11.  On 12 November 2019, the applicant filed a notice of appeal against the Judge’s decision.  Citing AF (Jamaica) v Secretary of State for the Home Department [2009] EWCA Civ 240, he stated in the notice that:

(a)  The “decision maker” did not properly consider his fear and “failed to conduct sufficient enquiry in the relevant country of origin conditions”.

(b)  The Judge failed to properly consider his credibility in that the Judge:

(i)  did not take into account “the psychological impact of the facts raised” including “the threats from the majority Muslim people”;

(ii)  did not consider “the atrocities committed on minority Hindus” in the city of Brahmanbaria in Bangladesh;

(iii)  did not consider or properly apply paragraph 2 of “the UN Committees General Comment No. 2 to adopt reforms or means of redress aimed at ensuring the safety of its citizenry”[5].

12.  In compliance with the directions of the court, the applicant lodged his written submissions on 9 March 2020 in which he referred to paragraphs 6 and 7 of the “General Comment No 1 By the UN Committee Against Torture”[6] and made the following additional points:

(a)  The Judge did not adequately take into account the fact that he was an unrepresented litigant with extremely limited resources.

(b)  Contrary to paragraph 18 of the CALL-1 form, he submitted a lot of evidence but it was ignored by the Board and the Judge.

13.  We heard the appeal on 19 May 2020. At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and Written Submission.

Discussion

14.  We will not repeat the general principles concerning appeals in non-refoulement cases, which are set out in our previous decisions such as Nupur Mst v Director of Immigration [2018] HKCA 524 (at paragraph14).

15.  With these principles in mind and having considered the materials available before us, we are of the view that the appeal should be dismissed.

16.  First, insofar as the applicant contends that the Judge had failed to properly assess his credibility, it is clear from the Judge’s reasoning that his decision did not in fact hinge upon the applicant’s credibility as the grounds replied upon by the applicant did not relate to credibility.

17.  Second, insofar as the applicant seeks to argue that the Board or the Director had failed to properly consider his evidence, we reiterate that assessment of evidence and country-of-origin information materials are primarily within the province of the Board (and the Director) and 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: Nupur Mst at paragraph 14(1).  None of these grounds exists in the present case.

18.  Third, the Judge was obviously aware that the applicant was an unrepresented litigant and he had duly addressed the applicant’s assertion that he only had “extremely limited” resources at [15] to [18] of the CALL-1 Form.

19.  Lastly, the applicant has misunderstood [18] of the CALL-1 form.  The Judge simply meant that the applicant had chosen not to give evidence during the oral hearing before the Board, not that the applicant had never adduced any evidence throughout the USM process.

20.  We do not see any relevance in any of the authorities cited by the applicant.

21.  In short, there was no proper ground of appeal.  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.

22.  For these reasons, we dismiss the appeal.