MD KAOSAR ACON v. TORTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 395/2018

[2018] HKCA 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 395 OF 2018

(ON APPEAL FROM HCAL NO 24 OF 2018)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 3 August 2018 (CALL‑1 form; [2018] HKCFI 1587). The judge refused his application for leave to seek judicial review of the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 9 February 2014 and was arrested by police on 11 February 2014.  After he was referred to the Immigration Department for investigation, he lodged a non‑refoulement claim on 14 February 2014 on the basis that if he should return to Bangladesh he would be harmed or killed by supporters of the rival political party Awami League (“AL”).  He has since been released on recognizance pending the determination of his claim.

3.  According to the applicant’s case, he became a member of the student wing of the Jamaat‑e‑Islami Party (“JIP”) in 2008.  He left JIP in 2012 and joined the Bangladesh Nationalist Party (“BNP”).

4.  One day in August or September 2012, he and other members of BNP were attacked by supporters of AL with wooden clubs and sticks and he suffered an injury to his right arm.  Several days later the applicant and other BNP members were threatened by AL members that if they did not leave the country they would be harmed or killed.

5.  In October 2012, when his neighbours warned him that some AL people were approaching his home with wooden sticks, the applicant ran away and took shelter at his cousin’s place in Dhaka before leaving Bangladesh to work in Singapore.

6.  He returned to Bangladesh and moved to Chittagong in April 2013.  One night he was arrested by police on suspicion of being a terrorist, and was released the next day only after his family had hired a lawyer for him.  The applicant felt he was no longer safe in Bangladesh and therefore departed on 4 July 2013 for China[1], and from there he sneaked into Hong Kong in February 2014 and lodged his non‑refoulement claim.  He completed his Non‑refoulement Claim Form on 17 November 2015 with legal representation from the Duty Lawyer Service.

The Director’s Decision

7.  By the Notice of Decision dated 31 December 2015, the Director rejected the applicant’s non‑refoulement claim.  The decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4].  Due to the low intensity and the low frequency of past ill treatment, and the applicant’s returning home in 2013 (which is inconsistent with the conduct of a person who is in genuine fear for his safety in his own country), the Director determined that the risk of harm from the AL people is small and there are no substantial grounds to believe that the applicant’s feared ill‑treatment is likely to materialize[5].  It was also considered that state protection and internal relocation alternatives are available[6].

8.  By a Notice of Further Decision dated 14 February 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non‑refoulement claim on all applicable grounds including right to life under article 2 of the Hong Kong Bill of Rights.

The Board’s Decision

9.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 16 June 2017.  The Board found that the applicant only suffered minor injury in 2012, there was no urgency on his part to leave Bangladesh as he had been able to live in Dhaka and Chittagong without any incidents from the AL supporters before he left for China and Hong Kong, he was not personally targeted, and state protection and internal relocation alternatives are available.  The Board held that the applicant failed to establish his claim and dismissed the appeal on 3 October 2017.

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 5 January 2018 to seek leave to apply for judicial review of the decisions of the Director and the Board on the following grounds:

(1)   procedural impropriety in the failure of the Director and the Board to conduct sufficient independent inquiry into or critical analysis of the relevant Country of Origin Information (“COI”), or to explain or justify why certain COI were preferred over the others, and for cherry-picking COI in arriving at their decisions;

(2)   error or misdirection in law for failing to consider the psychological harm as well as the mental and physical harm suffered by the applicant in the consideration of his claim;

(3)   procedural impropriety for failing to take into account of the concept of extended state acquiescence in the consideration of his claim; and

(4)   irrationality or illegality for failing to give sufficient reasons as to why he would not be at risk of being subjected to torture, CIDTP and/or persecution risks upon his return to Bangladesh.

The judge’s decision

11.  The judge found that (1) the applicant’s assertions are broad and vague, without particulars, specifics or elaborations as to how the Board or Director had erred in the decisions; (2) the applicant had failed to show it is unsafe and therefore unreasonable for him to relocate; and (3) there is no error of law or procedural unfairness in the decisions of the Director and the Board.  The judge was not satisfied that there is any prospect of success in the intended application for judicial review and refused the leave application accordingly[7].

12.  The applicant filed a Notice of Appeal against the decision of the judge on 14 August 2018.

Grounds of appeal

13.  The grounds of appeal stated in the Notice of Appeal are as follows:

(1)   he will face hardship if he is to return back to his home country;

(2)   the Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  It has also relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in it making groundless speculations.

14.  These grounds were not expressly stated in the application for leave to apply for judicial review, although it is arguable that ground (2) was covered in the board terms in the complaint on procedural impropriety in relation to the analysis of the COI materials.

Legal principles

15.  The relevant legal principles have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and are as follows:

(1)   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 scrutinizing the decision of the Board due to the seriousness of the 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.

(2)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)   In respect of new arguments, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)   In an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, 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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court.

Analysis

16.  The two grounds of appeal were not raised in the application for leave to apply for judicial review.

17.  As for ground (1), the Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.  In any event, this ground of appeal lacks particulars and the applicant failed to show that there is any error of law or procedural unfairness or irrationality in the decision of the Board.  As the Board has found[8], the applicant is an able‑bodied man of 29 years old with around six years of education and over eight years working experience and it would not be unduly harsh for him to relocate to other parts of Bangladesh to avoid local AL supporters in his village.  Therefore, this ground is bound to fail.

18.  The applicant’s complaint in ground (2) is just a bare assertion without evidence in support which can refute the Board’s findings.  He has not pointed out which pieces of information or cases relied on by the Board were not officially recognized or were outdated whilst the Board had considered a wide range of information from different sources covering the period between 2011 and 2015[9].

19.  Furthermore, the Court of Appeal would only reverse the judge’s decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  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 Board had explained in detail[10] why it decided that the applicant had not made out a case which justifies the need of non‑refoulement protection.  The applicant failed to show there are errors of law or procedural unfairness or irrationality in the decisions of the Board and/or the Director.  The Court will not intervene by way of judicial review even if this ground was raised before the judge.  Thus, ground (2) has no merit.

20.  In his skeleton submission, the applicant only stressed that high standards of fairness are required in the determination of a torture claim.  However, he did not point out in what way the Board had failed to observe such standards of fairness, or any errors of law or procedural unfairness or irrationality in the decisions of the Board and/or the Director.

Disposition

21.  For all the above reasons, there is no prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.