RE MD AWLAD HOSSAIN

CACV 126/2018

[2018] HKCA 557

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 126 OF 2018

(ON APPEAL FROM HCAL 873/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 27 April 2018 refusing leave to apply for judicial review.

2.  On 13 June 2018, the Registrar of Civil Appeals gave directions for skeleton submissions to be lodged and that if they were not lodged within the prescribed time (ie not less than 28 days before the hearing), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.  For the court’s approach towards a failure to lodge written submissions, see Re Manjit Kaur [2018] HKCA 247, para 10; Re Miha Md Limon [2018] HKCA 278, para 12; Re Ali Arshad [2018] HKCA 304, para 10; and Re Sk Sarfaraj [2018] HKCA 307, para 10.

3.  On 20 June 2018, the hearing of this appeal was fixed for 7 August 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions.  Accordingly, the hearing date was vacated, and we now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is a Bangladeshi national. He left Bangladesh for the Mainland on 19 February 2013 and entered Hong Kong illegally on 30 August 2013.  He was arrested by the police on 2 September 2013.  He lodged his non‑refoulement claim on 4 September 2013.

6.  The applicant’s non‑refoulement claim was based on the fear that, if he returned to Pakistan, he would be harmed, or even killed, by people from Awami League (“AL”), because he refused their invitation to leave their political rival Bangladesh Nationalist Party (“BNP”) (of which he was an ordinary member) and join AL.  It was the applicant’s case that, due to his refusal to join AL, he was beaten and verbally threatened by members of AL.  They even fired at him (but missed).  He therefore left Bangladesh for the Mainland and stayed there for about a month.  As he could not arrange a journey to come to Hong Kong, he returned to Bangladesh upon the expiry of his visa. He left Bangladesh for the Mainland again in February 2013, and managed to come to Hong Kong in August the same year.

7.  By a notice of decision dated 8 July 2016, the Director of Immigration rejected the applicant’s claim.  The director did not find any evidence that the AL supporters had exhibited intense and sustained effort to harm or kill the applicant.  The director considered that the applicant’s perceived fear of harm was neither real nor foreseeable.  The low intensity and frequency of the past ill‑treatments were indicative of the lack of any further risk of harm on his return to Bangladesh.  The availability of state protection and the viability of internal relocation would also lower or negate the perceived risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].

8.  By a notice of further decision dated 14 July 2017, the director assessed the applicant’s BOR 2 risk[4], and determined it against him.

9.  The applicant appealed to the Torture Claims Appeal Board.  After an oral hearing held on 6 October 2017, the board found that the applicant had exaggerated his injuries and his evidence was unreliable.  The board considered it unlikely that the leader of AL and his supporters would bother to carry out the alleged threats just to force the applicant, a newly joined BNP member who had no relevant experience, to join the well‑established AL.  The board also noted that the applicant did not make a non‑refoulement claim as soon as he left Bangladesh.  It concluded that the applicant was not a genuine seeker of non‑refoulement protection.  The board shared the director’s view that state protection was available to the applicant and internal relocation was a viable option for him.  The board also found that, as the AL leader was neither a government official nor acting in any official capacity, the Bangladeshi government had no involvement in the dispute.  Further, the injuries suffered by the applicant did not attain the minimum level of severity required by case law.  The board dismissed the applicant’s appeal on 6 November 2017.

The deputy judge’s decision

10.  The applicant filed the form 86 on 13 November 2017. The intended application for judicial review was in respect of the board’s decision.  The grounds for seeking relief were set out in the applicant’s affirmation in support made on 13 November 2017:

(a) The board failed to carry out sufficient research and inquiry into the country of origin information (“COI”), which rendered the procedure unfair;

(b) The board cherry-picked the material in the COI and relied upon those parts that were out-of-date;

(c) The board failed to make a finding that there was a consistent pattern of gross, flagrant or mass violations of human rights in Bangladesh;

(d) The board failed to analyse and assess whether state protection existed in Bangladesh;

(e) The board took into account material that was irrelevant;

(f) The board failed to call for psychological and psychiatric evaluations or reports;

(g) The board applied the wrong standard of proof; and

(h) The duty lawyer failed to represent the applicant sufficiently.

11.  After an oral hearing on 3 April 2018, the deputy judge dismissed the leave application on 27 April 2018. After summarising the facts and considering the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave to apply for judicial review in the CALL-1 form:

“10. These [ie the applicant’s grounds for seeking relief] are all broad and vague assertions by the applicant without providing any particulars or specifics to support his criticisms of procedural unfairness or irrationality in the adjudicator’s decisions, with the first four grounds relating to COI of which the applicant could have easily but failed to point out or identify at all from the listed COI or from any of his own sources of information as to which of them were inaccurate or irrelevant, or that in what way or manner was the adjudicator being selective or guilty of placing too much or too little weight in his consideration of his claim. It is simply not sufficient for the applicant to make such vague assertion without any specifics as clearly the burden is on him to substantiate his criticisms. Upon considering those COI referred to and relied on by both the Director and the Adjudicator, I do not find any error or unfairness in their reliance of such COI and that there is simply no merit in the applicant’s complaints under grounds (1) to (4).

11. The same can be said about his ground (5) when again he has not provided any particulars or specifics as to what irrelevant or inaccurate facts that the adjudicator had taken into account. As such there is no basis for this complaint of his.

12. As for ground (6), again in the absence of any evidence to suggest that such psychological or psychiatric evaluations were necessary and have ever been requested by him, there is simply no justification in this complaint of the applicant.

13. The two remaining grounds are also without merits or basis, as clearly the applicant had been able to present his case fully before the Director with the assistance of his legal representation throughout that stage of his claim, and of which he never raised any issue or complaint at any time during his appeal to the Board including during his personal attendance at the oral hearing before the Board. I am simply unable to find any merit or basis under these two grounds of the applicant.

14. In the premises and upon rigorous examination and anxious scrutiny of both the decisions of the Director and the Board, I do not find any error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their assessment and consideration of the applicant’s claim.

15. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

Notice of appeal

12.  The applicant filed the notice of appeal on 2 May 2018.  It was stated in the notice of appeal that:

“… the grounds of this appeal are that the Plaintiff will face hardship if he is to return 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 fairly outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Discussion

13.  The director considered the relevant COI in paragraphs 15 and 16 of his first decision in some detail; so did the board in paragraphs 25 and 26 of its decision.  Both the director and the board have demonstrated that they were aware of the material that corroborated the applicant’s case, just as they were aware of that which was against his case.  Their conclusions on state protection were made against the background that the Bangladeshi government had taken steps to counter corruption and to improve the efficiency and effectiveness of the police department.  We do not find any flaws in their analysis.  As the deputy judge pointed out, the applicant did not provide any particulars or specifics to support his criticism that the material used was outdated or unreliable.  There is no evidential basis to criticise the board for its use of the COI material.  Nor is there any reasonably arguable basis to accept the applicant’s bare assertion that the sources of the material were unreliable.

14.  In any event, the crucial issue is the evaluation of the risk of harm in light of the evidence before the board. Having heard the applicant at an oral hearing, the board duly assessed the evidence in paragraph 21 of its decision.  It found that the applicant was not a genuine protection seeker and his evidence was unreliable.  The applicant made no challenge to these findings.  Nor do we find any legal errors in the board’s analysis.  In our view, on the basis of these findings, the board was perfectly entitled to conclude that there was no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments meeting the high threshold required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.

15.  As we have said many times before, evaluation of the risk of harm is primarily a matter for the director and the board, and they are entitled to make the evaluation on the evidence available to them.  The court will not usurp their roles as primary decision makers.  In the absence of any legal error, judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

16.  Having considered the material available before us, we are of the view that the deputy judge’s observations are justified.  We are satisfied that none of the grounds for seeking relief set out in the applicant’s supporting affirmation merits the grant of leave to apply for judicial review.  We do not find any errors of law or procedure in the proceedings before the board or the director.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non‑refoulement claim is essentially a matter for the director and for the board, not the court.

17.  We do not see any prospect of success in the intended application for judicial review.  The deputy judge was therefore correct to conclude that no leave should be given to the applicant to apply for judicial review.  We dismiss the appeal accordingly.