SHAEKH SAGOR v. TORTURE CLAIMS APPEAL BOARD/NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 161/2018

[2018] HKCA 506

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 161 OF 2018

(ON APPEAL FROM HCAL NO. 651 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court) :

I. The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Josiah Lam given on 9 May 2018 refusing to grant leave to the applicant to apply for judicial review.

1.2  The applicant has failed to file his skeleton arguments according to the directions given by the Registrar of Civil Appeal and contained in the letter to the applicant dated 25 June 2018.  In such circumstance, the hearing date of the appeal, namely, 29 August 2018 was vacated, and this Court will proceed to consider the appeal on paper.

II.    Background

1)     Factual background

2.1  The applicant is a Bangladesh national who allegedly entered into Hong Kong illegally by boat on December 2013.  He was arrested by the police on 21 January 2014.  On 23 January 2014 and 23 September 2014, the applicant raised his torture claim.  The applicant claims that he was a member of a political group called Bangladesh Nationalist Party (‘BNP’) and his enemies from an opposing political group called Awami League (‘AL’) have threatened to kill him if he did not stop supporting BNP.  He decided to flee Bangladesh in October 2012.

2.2  The background facts have been summarized in the decision of the Torture Claims Appeal Board (‘the Board’) :

1)   The applicant is a supporter of BNP since his joining in 2007.  He once participated in a demonstration of BNP in Dhaka on 25 February 2010.  Members of the AL interrupted the demonstration, holding hockey sticks and pistols, and they fired shots in the air.  The applicant fled the scene.

2)   On the next day the applicant received a call from his friend, Sajib, who was an AL follower.  He warned the applicant to leave Dhaka as they were ‘coming to hunt you all down’.

3)  The applicant then returned to his native village in Netera.  Upon his return, he was being located by the people from Dhaka.  He managed to escape from his home but those people said to the applicant’s parents, ‘ask your son to quit BNP and join us, otherwise we will kill him without further warning’.

4)  Eight months of peace followed.  In the end of 2010, the applicant received a phone call from an AL member, Kawsar, and asked him to go to Dhaka and meet him.  The applicant refused and Kawsar said ‘we will come and abduct you…We will kill you if you say no…’.

5)  In the beginning of 2011, Kawsar called the applicant and said ‘if you are not joining us, the consequence will not be very pleasant…’ Few months of peace followed and Kawsar called again in mid 2011.  He wanted to discuss with the applicant face‑to-face and would come to his village.

6)  Until after October 2012, Kawsar called again and said ‘we will not harm you, come and talk to us’.  The applicant realized Kawsar would never give up and arranged a passport with aid from his uncle to leave the country. He flew to the Mainland and stayed there for some time.  He then sneaked into Hong Kong by boat.

7)  The applicant does not think the police in Bangladesh would be able to help him as they are under the control of AL.

2)     The Director’s Decision and the Director’s Further Decision                           

2.3  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 11 March 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (Torture/inhuman treatment) risk, persecution risk and torture risk (‘the Director’s Decision’).  By a further decision of the Director of 29 June 2017, the Director also assessed BOR Article 2 (Right to life) risk in respect of the applicant and decided against the applicant (‘the Director’s Further Decision’).

3)     The Board’s Decision

2.4  The applicant appealed against the Director’s Decisions to the Board on 21 March 2016.  After a hearing held on 14 July 2017, the Board dismissed the applicant’s appeal on 18 August 2017 (‘The Board’s Decision’).

4)     Judicial Review

2.5  On 19 September 2017, the applicant filed a Form 86 for leave to apply for judicial review of the Board’s Decision.  The supporting affirmation together with the applicant’s Form 86 set out various grounds for judicial review.

5)     DHCJ Josiah Lam’s Decision

2.6  After reviewing the Director’s decision, the Director’s Further Decision, and the Board’s Decision, DHCJ Josiah Lam on 9 May 2018 refused to grant leave to apply for judicial review.

2.7  DHCJ Josiah Lam considered the merits of the case.  He held that :

‘ 39. In my judgment, the Adjudicator (i.e TCAB) had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaint against the Adjudicator, who had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed that he was acquainted with the facts and the law. He had considered the Applicant’s case carefully and applied the law correctly. He was entitled to render those findings,conclusionsanddecisionsashedidandthose findings/conclusions/decisions were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non‑refoulement claim.

40. The Director is an interested party in the current application.  I have reviewed the Director’s decisions under ‘rigorous examination and anxious scrutiny’.  What has been said in para. 39 above is also true of the Director and his findings/conclusions/decisions. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

41. The Applicant’s complaints are not reasonably arguable.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.’

III.   Grounds of Appeal

3  The applicant filed his Notice of Appeal to the Court of Appeal on 16 May 2018.  It simply states that :

‘ And further take notice that the grounds of this appeal are that the Plaintiff 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.’

IV.   Our view

4.1  The grounds of appeal are bare allegations with no supporting reasons or arguments. 

4.2  In essence there are three grounds relied upon by the applicant :

1)   He will face hardship if he is to be refouled (returned) to his home country (‘Hardship argument’);

2)   The Board’s reliance on the source of news as referred to in the Director’s Decision and the Director’s Further Decision is unjustified as it is not officially recognized and at most hearsay (‘News argument’);

3)   The cases as cited in the Board’s Decision are outdated (‘Case argument’).

4.3  We are of the view that the applicant’s appeal is without merits.

1)     Hardship Argument

4.4  The applicant states that he would face hardship if he is to be refouled back to Bangladesh.  The Board has stated the correct legal position regarding the applicant’s Hardship Argument.  It is settled law that the asylum seeker should be required to establish a reasonable degree of likelihood that his/her fear will materialize, in that persecution will take place.  The test of a ‘real risk’ was approved by the Court of Final Appeal in Hong Kong in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743.

4.5  The Board made the following finding of facts that the applicant’s alleged hardship if refouled is unjustified :

‘ 50. As explained above, the facts found in a claim will form the basis of the assessment of risks to the Appellant, if he is to be refouled. Nevertheless, the material allegations of the Appellant were not supported by objective evidence.

 51. There was no reliable evidence that the Appellant joined the BNP as a member or supporter in 2007.  Even if it is assumed that he was a BNP supporter, the evidence showed that he was merely a grass-root level supporter.

 52.   The evidence adduced showed that a grass-root level supporter of the BNP like the Appellant would have been unlikely to give rise to a well-founded fear of persecution even though it is accepted that the BNP is in opposition to the current AL led government.

 53.   Furthermore, even if it is assumed the Appellant is a supporter of the BNP, it was disproportionate, implausible and illogical for Kawsar and others to “persecute” the Appellant, simply because he refused to join AL.

 54.   The Appellant confirmed at the Hearing that none of Kawsar and others was a public official or was connected with the government. There was no evidence that any public official, or persons able to wield the authority of the government and/or state had any connection with Kawsar and others.

 55.   There was also no, or no reliable evidence that the government and/or state and/or other authorities in Bangladesh have acquiesced in the alleged ill‑treatment of the Appellant.

 56.   Despite the many threats [made] to the Appellant by Kawsar and others on differ occasions to which I have the greatest sympathy for him, no injuries at all have been occasioned to the Appellant or his family members. The Appellant confirmed so at the Hearing. He also confirmed that despite the visits paid to his home and the various telephone calls, Kawsar and others have never caused the Appellant to suffer from physical harm or bodily infliction.

 57.   In 2010, Kawsar and others approached the Appellant’s home village to locate the Appellant.  To no avail they left message and killing threat to his family, and then left without doing any harm.  Three attempts thereafter (over the next two years) were conducted by Kawsar on the Appellant by telephone.  The last three telephone conversations (i.e. in early 2011, mid 2011, in October 2012) contained no killing threats but merely an invitation for the Appellant to speak to him face-to-face.  Considering the low frequency of telephone calls and attempts, the substance of the conversations and that there has been no killing threats for the conversations in early 2011, mid 2011 and October 2012, the Board is of the view that the various telephone calls and behaviours of Kawsar and others did not show a real intention to harm the Appellant and are indicative of a small future risk of harm were the Appellant to return to Bangladesh.

 58.   There was no evidence that the Appellant has suffered physical and/or mental suffering of the requisite severity.

 59.   There was no, or no reliable evidence that the alleged perpetrators (i.e. Kawsar and others) had ill‑treated the Appellant with an intention listed in the definition of torture in Section 37U of the Ordinance.

 60.   There was no, or no reliable evidence that the alleged ill-treatment of the Appellant had any relevance to the interest and/or benefit of the Bangladesh government.

 61.   There was no, or no reliable evidence that the Appellant had a well-founded fear of persecution for one or more of the reasons enumerated in Article 1A(2) of the RC.

 62.   There was no, or no reliable evidence that the state of Bangladesh was unwilling or unable to afford protection to the Appellant.  The Appellant left Bangladesh with the strength of his own passport.  There were no difficulties encountered by the Appellant when he left Bangladesh.

 63.   There was no, or no reliable evidence to show that the state of Bangladesh was unwilling to help the Appellant for a RC reason…’

4.6  The applicant’s own case on the facts and evidence does not support any alleged claim of hardship.  The Hardship Argument falls apart.

2)     News argument

4.7  The ‘source of news’ was not identified by the applicant but presumably he was referring to the information contained in the Country of Origin Information (‘COI’).

4.8  As for the applicant’s argument that the Director’s Decision, the Director’s Further Decision and the Board’s Decision containing source of news which was not officially recognized and at most hearsay, this was expressly considered by the Board.  It held ‘hearsay evidence is admissible, but subject to weight’.  The Board is entitled to rely on COI.  The Board had scrutinized the COI material, and concluded that the same was impartial, independent and balanced.  The COI material was publicly available and accessible.  It was fully referenced and can be verified.  More so, all COI material was presented to the applicant at the Board hearing for comments, including those which are for and against his case.  He was given a chance to respond, and to provide a full and informed explanation if he had any objection.  All that the applicant could say was that the source of news on the internet was unreliable, and the police are corrupt.

4.9  Although it is a part of the applicant’s case that he did not file a police report for the alleged threats to his life by AL because he ‘does not think the police in Bangladesh would be able to help him as they are under the control of AL’, the COI material did indicate that there is in Bangladesh a mechanism to lodge a complaint to the higher authority if their complaints were not entertained by the local police.  The applicant was asked if he had made a complaint to the higher authorities after his alleged failed attempt to report to the local police.  He said he did not do so.

3)     Case argument

4.10  The applicant had simply not identified which authority relied upon by the Board is no longer good law.

V.    Conclusion

5.1  It has not been shown that there is any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  DHCJ Josiah Lam was correct to hold that leave to apply for judicial review should not be granted.

5.2  There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.