AMIN SHEIKH AL v. TORTURE CLAIMS APPEAL BOARD

CACV 418/2018

[2019] HKCA 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 418 OF 2018

(ON APPEAL FROM HCAL 1004 OF 2017)

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.1  This is an appeal by Amin Sheikh AL (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 17 August 2018 dismissing his application for leave to start judicial review proceedings.  At the hearing of the appeal on 11 January 2019, he did not appear.  We have therefore dealt with the appeal on the papers. 

1.2  The judge’s reasons were given in the judge’s observations set out in a document referred to as the “CALL-1 form” dated 17 August 2018 (“the Judge’s Decision”)[1].  The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 24 November 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of Bangladesh born in 1990.  He claimed that he worked on his family’s farm from 2003 to 2013.  He entered Hong Kong illegally on 9 October 2013 from the mainland after having stayed there for about 5 months and was arrested on 15 October 2013.  After his arrest, he lodged a claim for non-refoulement on 16 October 2013 on the basis that if he returned to Bangladesh, he would be harmed or killed by members of a rival political party Awami League (“AL”) or by the police for taking part in a riot. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-  he is from a family of supporters of the Jamaat-e-Islami (“BJI”) in Munshigonj, Bangladesh;

-  after leaving school, he assisted his father in farming and also became a supporter of BJI, regularly attending its meetings and rallies with his brother, Rofikul;

-  on or about 5 May 2013, the appellant and his brother attended a “religious congregation” held by BJI with more than 100,000 attendees; the appellant and other attendees were attacked by the police firing into the crowd and “outsiders” with wooden sticks. The appellant said he was injured by a wooden club and the butt of a policeman’s gun; 

-  the appellant claimed that when he was working on the family land nearby the next day, the police came to his family home to look for him and his brother; four days later, the appellant’s father told him that about 5 to 6 police officers had come to his family home to look for him and his brother;

-   the appellant then decided to leave Bangladesh as he feared he would be located, arrested and harmed by the police, and that AL members might also harm him;

-  the appellant left Bangladesh and travelled to the mainland; he entered Hong Kong illegally on 9 October 2013 after staying there for 5 months.  

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1  What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4  What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim.  The Director rejected the appellant’s claim for reasons set out in a decision given on 7 July 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a further decision given on 20 July 2017 in respect of “BOR 2 risk" (“the Director’s Decisions”).

The TCAB’s Decision

7.1  The appellant then appealed to the TCAB which held a hearing on 20 October 2017 (“the TCAB hearing”) at which the appellant was present.     

7.2  The TCAB found that the appellant was not a credible witness because there were discrepancies in his evidence.  At the TCAB hearing, the appellant informed TCAB that he would like to add that through a telephone call to his brother, Rofikul, answered by a friend of his brother, the appellant was informed that his brother was killed in Bangladesh on 10 October 2017 but he was unable to verify the aforesaid information from his family members.

7.3  At the TCAB hearing, the TCAB asked the appellant various questions about his knowledge of BJI.  The appellant claimed that his brother joined BJI 6 to 7 years ago but he himself was not a member.  The TCAB found that this piece of evidence was different from the written statements of the claims provided by the appellant.  The TCAB also asked him about the alleged events on the night on 5 May 2013 when he was allegedly attacked by the police.  The TCAB found that his evidence on the above was contrary to the available Country of Origin Information (“COI”) in important aspects.

7.4  After examining his claim, the TCAB dismissed the appellant’s appeal for the reasons set out in its Decision (“the TCAB’s Decision”). Essentially, the TCAB rejected the appellant’s claim that he had been involved with BJI in Bangladesh, or that his brother was a leader of BJI, and the appellant’s allegation of his attendance at the event in Dhaka on 5 May 2013 was not credible.

7.5  And even taking the appellant’s claims at the highest, he had not suffered any serious harm as he was able to work at the farm the next day.  He did not have a profile as a BJI supporter that would bring him to the attention of AL.  His assertion that he could be caught and harmed by the police or the AL in Bangladesh was not based on any objective materials as there were more than 100,000 attendees at the congregation at Dhaka on 5 May 2013.  He had been able to leave Bangladesh freely using his travel document.  He had failed to show that any treatment he would face on return would attain a minimum level of severity, or that there is a genuine and substantial risk of ill-treatment, or any state acquiescence.

Application for leave to start judicial review

8.1  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision, with the Director named as an interested party.  The appellant filed his Form 86 on 4 December 2017 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

“1. Procedural Impropriety/Unfairness - The adjudicator’s failure to carry out sufficient research and inquiry into the COI conditions had the material consequences of a failure to have regard to relevant and up-to-date COI research, whether of wide and overall general relevance, or focusing on the circumstances of the Applicant. As of consequence, the decision in dismissing the Applicant’s case was founded upon an unfair procedure.

2. Irrationality – The Adjudicator failed to take into account and consequentially failed to put any weight on the relevant COI research and failing to take into account highly relevant information in the said cited COI, cherry-picking and taking into account and putting weight on COI information of little or no relevance. The Adjudicator also relied and put weight on outdated COI research publications instead of the most updated available. As of consequence, the Adjudicator arrived at a Decision in dismissing the Applicant’s case reasonable that was unreasonable to Wednesbury standard.

3. Irrationality – The Adjudicator failed to evaluate and make a finding of fact as to whether there exists in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to Article 3(2) of CAT. As of consequence this resulted in a Decision that is unreasonable.

4. Irrationality – The Adjudicator failed to analysis and assess whether state protection exists in Bangladesh under the extended meaning namely whether the state had exercised due diligence or sufficient due diligence. Furthermore, the Adjudicator misdirected herself on the law erroneously stating what the extended meaning of state protection was.

5. Irrationality – The Respondent took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant. As of consequence, the Respondent arrived at a Decision in dismissing the Applicant’s case that was unreasonable.

6. Procedural Impropriety – The failure to call for Psychological and Psychiatric evaluations and Reports at any stage of screening and by the Adjudicator at the Appeal stage.

7. Procedural Impropriety / Unfairness – The Adjudicator applied the incorrect standard of proof in Decision.

8. Procedural Impropriety / Unfairness – The failures at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.”

8.2  However, since the TCAB’s Decision had been attached, the judge correctly took the application as being one against the TCAB’s Decision as well. 

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge.  The judge refused the application for the following reasons:

“11. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and I do not find any basis or merits in any of them.

12. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

13. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant and were made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue over the hearing bundle nor did he make any request to the adjudicator for further time to enable him to properly prepare for his appeal. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

14. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment 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 I accordingly refuse his leave application.”

Appeal to Court of Appeal

10.1  By a Notice of Appeal filed on 27 August 2018, the appellant appealed the judge’s order to this court.  The grounds of appeal were, in brief, as follows:

(1)  The judge was wrong in law in holding that there was no state acquiescence or involvement.

(2)  The judge failed to provide detailed reasons in support of his decision.

10.2  The appellant’s affirmation was a regurgitation of his previous affirmations with bare assertions only.  

Legal Principles

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

11.1  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his 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 appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the COI.  

11.2  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 TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  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 TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2] and I will not repeat them here.

11.3  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 appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4] 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.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 5 December 2018 submitting that “high standards of fairness” are required for the judge to deal with his application for leave for judicial review of the appellant’s claim for non-refoulement.   

Discussion

13.  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.  The Judge was right in characterizing the grounds in the Form 86 as broad and vague.  They did not have any specific relevance to the TCAB’s Decision, and the appellant failed to adduce any evidence to indicate specifically what COI he alleged was incorrect. 

14.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.