HOSSAIN MD FARHAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 496/2018

[2019] HKCA 184

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 496 OF 2018

(ON APPEAL FROM HCAL NO 1056 OF 2017)

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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 28 September 2018. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Bangladesh who entered Hong Kong illegally on 13 January 2014 and was arrested by police on 20 January 2014.  After being referred to the Immigration Department for investigation, he lodged a non-refoulement claim 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, he was a supporter of the political party Bangladesh Nationalist Party (“BNP”) and had been previously attacked by the AL supporters on several occasions when he was with his fellow BNP supporters.  He was fearful of being targeted by the AL supporters so he left Bangladesh for China in 2013 and sneaked into Hong Kong in January 2014.

The Director’s decision

4.  By a Notice of Decision dated 2 September 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  The decision covered torture risk[1], BOR 3 risk[2] and persecution risk[3].

5.  The Director considered that the low intensity and frequency of past ill‑treatment from the AL supporters is indicative of small future risk of harm.  The Director also assessed that the applicant’s dispute with the AL members was private in nature and did not inflict any serious harm on him.  There is no indication that the state was involved in or had provided any form of encouragement to supporters of AL to harm or kill the applicant, and internal relocation alternatives are available.  Thus, the non-refoulement claim was rejected.

6.  By a notice of further decision dated 9 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including BOR 2 risk[4].   The applicant did not submit any additional materials for the Director’s consideration despite the Director’s invitation.  The Director considered that the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, particularly BOR 2 risk, being violated upon his return to Bangladesh.

The Board’s decision

7.  The applicant appealed to the Board against the Director’s decisions[5]. An oral hearing was held on 10 November 2017.  The Board was not persuaded that the applicant was giving a truthful account of his case.  Even assuming that the incidents occurred as asserted by the applicant, none of them resulted in serious violence and the injuries which the applicant said he sustained were not serious.  The Board assessed that there is no real risk the applicant would suffer ill‑treatment of any sort or be arbitrarily deprived of his life if he is refouled to Bangladesh.  The Board therefore rejected the appeal on 7 December 2017.

The intended judicial review

8.  The applicant filed a Form 86 and an affirmation on 12 December 2017 to seek leave to apply for judicial review against the decision of the Board on the grounds that theadjudicator 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, and relied on information not officially recognized or simply hearsay or outdated cases.

The judge’s decision

9.  The applicant was absent on the date of hearing before the judge on 22 August 2018 and later sent the court a medical certificate certifying that he was granted sick leave for headache on that day.  The judge proceeded to consider the application as he considered that given the nature of the applicant’s alleged ailment and the fact that he is a relatively young man with no evidence of any chronic or serious health problem, it does not constitute any good reason for his failure to attend the hearing and there is not any justification to schedule another oral hearing for his application.

10.  The judge decided that the applicant’s complaints are just broad and vague assertions without particulars or specifics or elaborations except for the complaint about the hearing bundle.  The judge did not find anything amiss arising from the hearing bundle as most of the documents should be well familiar to the applicant as they had already been made available to him earlier when he still had legal representation and he never raised any issue or requested for further time at the oral hearing before the adjudicator.  The judge also did not find any error of law or procedural unfairness in the decisions of both the Director and the Board or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

11.  The judge was not satisfied that the applicant has any prospect of success in the intended judicial review and refused the leave application accordingly.

12.  The applicant filed a notice of appeal against the decision of the judge on 3 October 2018.

Non-compliance with unless order

13.  The appeal was scheduled to be heard on 11 March 2019.  Directions were given by the Registrar of Civil Appeals on 29 November 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

14.  A notice of hearing of the appeal dated 21 January 2019 was issued and sent to the applicant by post.  In the notice, he was reminded that he should comply with the above directions of the Registrar.

15.  The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 11 February 2019).   Pursuant to the unless order of the Registrar on 29 November 2018, a letter dated 12 February 2019 was issued by the court to the applicant to notify him that the hearing date has been vacated and his appeal will be dealt with on paper.  It was only on 15 February 2019 that the court received his skeleton argument, which was dated 11 February 2019.

16.  The unless order was not complied with notwithstanding the skeleton argument was dated 11 February 2019.  The applicant is required to lodge his submission on or before 11 February 2019.  He was four days late.  As the unless order was not complied with, we decline to reinstate the hearing date.  We will deal with the appeal on paper, and take into consideration the skeleton argument lodged belatedly by the applicant.

The notice of appeal

17.  The applicant stated his grounds of appeal in the notice of appeal as follows:

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

(2)   the Board has significantly relied on source of news which is not officially recognized, or 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 the Board making groundless speculations; and

(3)   the judge continued with the hearing of the leave application in the absence of the applicant (who could not attend the hearing due to his medical condition), not allowing him an opportunity to put forward his submissions.

18.  In his skeleton argument, the applicant stressed that high standards of fairness are required in the determination of a torture claim and criticized the adjudicator for acting in a procedurally unfair manner in dealing with his application without properly assessing his credibility.

Legal principles

19.  The relevant legal principles have been stated comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and are as follows.

20.  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.  Although in non-refoulement cases the court will adopt an enhanced standard in scrutinizing 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 Country of Origin Information (“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.

21.  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.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated 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.

22.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

23.  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.

Consideration of the grounds of appeal

24.  The first ground of appeal was not raised in the application for leave to apply for judicial review.  The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive not canvassed at the Court of First Instance and for which leave has not been sought within time.  In any event, this ground of appeal is lacking in particulars and the applicant failed to show there is any error of law or procedural unfairness or irrationality in the decision of the Board.  The first ground is bound to fail.

25.  The applicant’s complaint in the second ground is just a bare assertion without evidence in support which can refute the Board’s findings.  Besides, he failed to point out which piece of information or which case relied on by the Board was not officially recognized or was outdated.

26.  The assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation is primarily within the province of the Board and the Director.  It has not been demonstrated that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

27.  There is no basis for the Court of Appeal to interfere with the judge’s decision.  The second ground has no merit.

28.  As for the third ground being the applicant’s complaint about hearing the leave application in his absence, taking into account he is relatively young with no evidence of any chronic or serious health problems, we agree with the judge the nature of the applicant’s alleged ailment does not constitute good reason for his failure to attend the hearing on 22 August 2018.  Furthermore, the applicant’s arguments attached to his Form 86 and stated in his affirmation in support were duly considered by the judge. The applicant failed to demonstrate any real prejudice had been caused.  The third ground is unmeritorious.

29.  Regarding the applicant’s criticism that the adjudicator acted in a procedurally unfair manner without properly assessing his credibility, he did not provide any specifics or elaboration for this complaint.  The adjudicator has set out in detail his assessment of the applicant’s credibility in §§51 to 61 of his decision.  This unsubstantiated complaint has no basis.

Disposition

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