SHEIKH BADRUL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 125/2020

[2020] HKCA 1060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 125 OF 2020

(ON APPEAL FROM HCAL NO 1582 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):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge K.W. Lung (“the Judge”) given on 8 May 2020 dismissing his application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 31 July 2018 dismissing his appeal against the decision of the Director of Immigration (“the Director”) dated 26 April 2017 rejecting his non-refoulement claim.

The applicant’s case

2.  The applicant is a national of Bangladesh.  He arrived in Hong Kong illegally on 23 December 2013 and was arrested by the police on 24 March 2014.  He lodged his non-refoulement claim with the Director on 26 March 2014. 

3.  The applicant’s claim is based on his fear of being harmed or killed by members of the Awami League (“AL”) as he was a member of the Bangladesh Nationalist Party (“BNP”).  His case was set out in [23] to [33] of the Board’s decision and summarised by the Judge in [10] to [11] of the Form CALL-1^[1]. 

4.  The applicant’s case, in brief, is that, in June 2012, the AL people came to the restaurant he owned to recruit him to join the AL but he refused.  The AL people then assaulted him and vandalized his restaurant.  He tried to avoid them by moving to his relatives’ places but he continued receiving threatening telephone calls from them.  He was then advised by his family members to move to Hong Kong. 

5.  By his decision dated 26 April 2017, the Director rejected the applicant’s claim having regard to the torture risk^[2], persecution risk^[3], BOR 2 risk^[4] and BOR 3 risk^[5]grounds. 

6.  The applicant’s appeal to the Board was heard on 4 July 2018.  By its decision dated 31 July 2018, the Board dismissed the appeal having regard to all the four applicable grounds. At [45] to [49] of the Board’s Decision, the Board found that the applicant had embellished his claim and that he will not be at risk from any of the proscribed harms upon his return. 

Application for leave to start judicial review

7.  On 9 August 2018, the applicant filed a Form 86 to apply for leave to judicially review the decision of the Board.  The grounds put forward by the applicant were as follows:

(1)  The Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  The Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(7)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(8)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(9)  irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

8.  In his affirmation in support of the leave application the applicant advanced the following grounds:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return; and

(3)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

The Judge’s Decision

9.  The applicant was absent from the scheduled hearing before the Judge on 31 January 2019. At a subsequent hearing on 17 April 2019, the Judge accepted the applicant’s explanation for his absence to the earlier hearing and proceeded to hear his application.

10.  After hearing the applicant, the Judge refused leave for the reasons set out in [21] to [29] of the Form CALL-1 :

“21. The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Immigration officer and the Adjudicator. The Hearing Bundle was explained to him by his friend. His friend had also explained the Board’s Decision to him.

22. It is obvious that the Board concluded that the factual basis of the case did not support his claim.

23. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had legal representation at the screening stage before the Immigration office, which is very important stage for fact finding. The Board also relied upon such findings. He cannot complain that he did not have legal representation at the appeal stage or for this application.

24. The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

25. This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standard of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

26. I shall deal with his grounds in his affirmation. He has confirmed that he had no problem with the Hearing Bundle for the appeal as his friend had explained it to him. The fact that the Director decided not to have another screening for BOR 2 risk is entirely at the Director’s discretion under the law. He has no ground to complain the Director’s discretion. All other grounds do not sustain as they are either opinions or he has no reasons to complain.

27. As to the grounds attached to Form 86, they are either repetitive of the grounds in his affirmation or they are ground not relevant to the reasons on which the Board refused his appeal. They seem to be copied from other similar applications. This can be seen by the jumbled structure and wrong description of the Adjudicator’s gender in those grounds. They must be rejected.

28. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

29.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review.  Accordingly, I dismiss his application.”

Appeal to Court of Appeal

11.  By a Notice of Appeal filed on 19 May 2020, the applicant appealed the Judge’s order to this court.  He stated his grounds as follows:

(1)  [the judge] was wrong in law in holding that there was no state acquiescence or involvement; and

(2)  [the judge] failed to provide detailed reason in support of his decision.

Skeleton Submissions

12.  The applicant filed a written submission on 27 October 2020 submitting that high standards of fairness are required for making a decision by the decision maker. He cited various authorities including ST v Betty Kwan^[6]and Secretary for Security v Sakthevel Prabakar^[7], and argued that high standards of fairness should be applied because the applicant’s life is in jeopardy and the decision has the effect of finally disposing of the applicant’s claim and making him liable to be removed.  However, he did not provide any elaborations for his argument which did not support his grounds of appeal. 

Legal Principles

13.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

14.  The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin.   

15.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration^[8]and we will not repeat them here. 

16.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong^[9].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall^[10] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

17.  We heard the appeal on 15 December 2020.  At the hearing, the applicant stressed that he could not return to his country and asked this court to allow him to stay in Hong Kong.

Discussion

18.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

19.  We are of the view that the matters stated in the notice of appeal and the applicant’s submissions do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge. In the present case, the applicant has not pointed to any error in the Judge’s reasons for decision. 

20.  Regarding the grounds put forward in his Notice of Appeal, the Judge did not hold that there was no state acquiescence or involvement as a reason to reject his leave application and the Judge has set out in detail his reasons as mentioned under paragraph 10 above in this judgment. 

21.  In any event, we have reviewed both the Board’s decision and the Judge’s decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision. 

22.  For the above reasons, we are of the view that the appeal has no merit.  Accordingly, we dismiss the appeal.