MOFIJUR v. THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 143/2019

[2019] HKCA 886

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 143 OF 2019

(ON APPEAL FROM HCAL 1454 OF 2018)

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J U D G M E N T

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Hon Yau J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Lung (“the judge”) given on 13 March 2019 refusing leave to apply for judicial review sought by the appellant.  The subject-matter of the intended judicial review is the decision of the Torture Claims Appeal Board (“TCAB”) given on 9 July 2018 dismissing the appellant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 25 September 2015 and 30 November 2016 rejecting the applicant’s non-refoulement claim. 

Background

2.  The appellant is a national of Bangladesh born on 6 November 1980 in Basudeb Pore, Bangladesh and is single.  He took care of his father’s farmland after his 2 brothers had gone to work in Dhaka and his 3 sisters moved out of home after getting married.  He entered Hong Kong illegally and was arrested by the police on 17 April 2008.  He raised his claim for non-refoulement by way of written representation dated 26 April 2008. Subsequently, he filed his non-refoulement claim form and supplementary claim form dated 19 December 2013 and 12 September 2014 respectively.  

3.  The appellant’s allegations in support of his claim were set out in detail in the TCAB’s decision and in gist in that of the Judge.  In a nutshell, the assertion of the appellant is that if he is returned to Bangladesh, he would be harmed or even killed by his paternal uncle Minhaz due to a land dispute between Minhaz and his father. 

4.  The appellant’s father and Minhaz inherited equal share of a piece of farmland jointly owned by the appellant’s grandfather and the grandfather’s brother, Ekkubar, who is the father of Minhaz.  In around 2005, Minhaz sold his share of the farmland and wanted to take the share of the appellant’s father in the land which was refused by the appellant’s father. 

5.  Minhaz was very influential in the area where the appellant lived as he had been a member of the Bangladesh Nationalist Party (“BNP”) member since around 2002.  The appellant was an ordinary member of the Awami League (“AL”), but BNP was the dominant political party.  Minhaz had a good friend named Majid, who was a BNP leader in the area.  Majid had full control of the police in the appellant’s village and Minhaz also had good relationship with Police Inspector Ramzan of the Harina Kundau Police Station. 

6.  One morning in November 2007, Minhaz and his 2 friends came to the farmland of the appellant’s father and alleged that the farmland did not belong to him.  The appellant’s father quarrelled with them and Minhaz hit his head with a stick.  The appellant went to confront Minhaz, but was beaten by Minhaz and his friends with bamboo sticks.  The appellant lost consciousness.  His father called a doctor to give him treatment at home.  

7.  The appellant went to the Harina Kundau Police Station together with his friends to make a report to Inspector Ramzan about the incident.  He saw Minhaz and his people in the police station.  The police did not assist him and told him to leave. Afterwards, Minhaz threatened to kill the appellant and his father.  They did not report the incident to the police. 

8.  In early 2008, BNP became the ruling party in Bangladesh.  The appellant believed that Minhaz would kill him as Minhaz had become more influential in the area.  In early 2008, the police came to the appellant’s home, saying that Minhaz had filed a report against him for assault.  The police assaulted the appellant and asked where his father was.  He refused to disclose his father’s whereabouts and was taken to the Harina Kundau Police Station.  He was detained in a cell and was charged with the offence of possession of weapon illegally. He was however released after the police spoke with the Chairman of AL in his area.  The appellant did not report this incident to other authorities as he did not have enough money to pay bribe to them. 

9.  The appellant went to stay with his friend in Dhaka for 2 to 3 months.  He then applied for his passport and left Bangladesh after paying 500 Taka bribe money to the police.  He entered Hong Kong through China illegally and was arrested by the police on 17 April 2008. 

10.  The appellant learnt from his friend over the telephone that Minhaz had taken over his father’s farmland.  His family was forced to leave the village and his father told him not to return home as Minhaz might kill him.  His father subsequently passed away.  The appellant considered that he would not be safe even if he relocated to other places in Bangladesh. 

11.  The appellant’s non-refoulement claim was examined under all four grounds for non-refoulement protection, namely “BOR 3 risk”[1], “persecution risk”[2], “torture risk”[3] and “BOR 2 risk”[4]. 

The Director’s Decisions

12.  The Director, after examining the claim of the appellant which was advanced with legal assistance, did not accept that the appellant would be subject to continuous interest of Minhaz as his father had passed away and his father’s farmland had been taken over by Minhaz and there had been a time lapse of more than 7 years since he had left Bangladesh.  It was the finding of the Director that the ill-treatment allegedly inflicted upon him did not meet the minimum level of severity.  The Director also found that the appellant was unable to provide evidence showing that Minhaz and his people, as well as the police, would harm the appellant with state acquiescence.  He failed to establish that he would face a real and substantial risk as he alleged upon his return to Bangladesh.  The Director rejected the appellant’s claim for these reasons in the decisions given on 25 September 2015 and 30 November 2016.  

The TCAB’s Decision

13.  The appellant then appealed to the TCAB.  He was represented by the duty lawyer at the hearing.  The TCAB assessed the evidence and found that the appellant gave conflicting information in his non-refoulement claim form and supplementary claim form which revealed that he could not have been telling a truthful account of what had happened to him.  The TCAB also found that the appellant had only made bare assertion without the support of any evidence that Minhaz had wanted to kill him while the BNP was in power. 

14.  The TCAB found that Minhaz had already taken over the farmland of the appellant’s father in November 2007 or early 2008, and there was no evidence showing that Minhaz would continue to look for the appellant as it was unnecessary for Minhaz to do so.  Also, there was no indication that the BNP would lend its party resources or support to Minhaz to assist him in his private dispute with the appellant.  The appellant was not facing any real or personal risk from Minhaz. 

15.  In addition, the TCAB found that the dispute between the appellant and Minhaz was a private dispute, with no involvement of the Bangladeshi government. There was no evidence showing that Minhaz and his men were public officials or persons acting in official capacities.  The appellant’s alleged fear of ill-treatment was unlikely to materialize. He failed to show that any treatment he would face would attain a minimum level of severity, or that there was a genuine and substantial risk of such alleged ill-treatment, or that there was any state acquiescence. 

Leave to Apply for Judicial Review

16.  The appellant then took out an application in the Court of First Instance for leave to apply for judicial review to quash the TCAB’s Decision.  The appellant set out in his affirmation his grounds of application which were mainly about the TCAB’s reliance upon hearsay information and outdated material in relation to Country of Origin information, and that the TCAB’s Decision was unfair and wrong as the adjudicator had given undue weight on irrelevant material.  

The Judge’s Decision

17.  The appellant appeared at the hearing before the judge.  After summarising the facts of the case and giving due consideration to the decisions of the Director and TCAB, the judge refused leave to apply for judicial review.  The judge stated in the CALL-1 Form[5]:

“12. It is quite obvious that the Board rejected the applicant’s appeal based upon the applicant being unable to establish the facts of his case. The applicant has no factual basis for his claim.”

Grounds of Appeal

18.  By a Notice of Appeal filed on 25 March 2019, the appellant appealed the judge’s decision to this Court.  The appellant stated the following grounds in the Notice of Appeal:

“The Honourable Deputy High Court Judge K.W. Lung decision is wrong, he could not show real law in favour of his decision.”

19.  The appellant filed his skeleton submissions on 10 June 2019.  In his submissions, he alleges that:

(a)  the duty lawyer failed to give him proper legal advice and assistance;

(b)  the interpreter provided to him at the TCAB hearing was unable to translate his case to the adjudicator leading to the incorrect decision made by the Director and the TCAB; and

(c)  the Immigration Department’s screening system was inappropriate and should be replaced by a new system.

20.  During the hearing the appellant further submits that in his home country the law only protects the rich people and as he has no money he is under the fear for his life if he is to return there. 

Legal Principles

21.  The appellant’s claim for non-refoulement was first considered by the Director and then the TCAB.  They assessed the evidence of the appellant under the four grounds for non-refoulement protection, taking into consideration relevant matters including the appellant’s personal circumstances as well as Country of Origin information of Bangladesh.  It is the finding of the TCAB that the appellant had not given a truthful account of what happened to him in Bangladesh.  

22.  When this case came before the judge for leave for judicial review to quash the decision of the TCAB, the legal principles are that the judge would not intervene unless there were errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this principle are set out in Nupur Mst v Director of Immigration[6].

23.  In dealing with the present appeal this Court is to scrutinise the decision of the judge with reference to the appellant’s grounds of appeal.  Again, in keeping with the established principles governing appeals to the Court of Appeal from the refusal of a judge to grant leave for judicial review, this Court will 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.  Generally, fresh evidence would not be admitted unless the requirements in Ladd v Marshall[7] are satisfied.  Nor would this Court entertain new arguments based on facts, when those arguments should have been canvassed before coming to this Court.

Discussion

24.  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.  It must, however, be pointed out that the judge in his decision ruled that no unfairness had arisen although the appellant had had no legal representation during the hearing in TCAB.  The appellant was, in fact, represented by a counsel instructed by the Duty Lawyer Service during the hearing.  In the view of this Court, although the mistake is regrettable, it has no adverse effect on the decision of the judge in refusing leave for judicial review.  Being legally represented the appellant’s interests were better protected. 

25.  The ground of appeal that the duty lawyer failed to give him proper legal advice has never been raised with the TCAB or the judge.  This is only a mere assertion of the appellant without any supporting evidence.  Most importantly, it can be seen from the decision of the TCAB that the counsel who represented him in the hearing had stated his case fully which the TCAB had analysed carefully and thoroughly.  This ground of appeal must fail.  

26.  As regards the failure of the interpreter to interpret his case to the adjudicator of TCAB, it is a mere speculation on the part of the appellant.  The basis of his complaint is that even though he spoke to the adjudicator for 10minutes, the interpreter took only 2 minutes to interpret what he said into English.  The lengths of time of 10 minutes and 2 minutes are no doubt estimation only of the appellant.  This is hardly a convincing ground of appeal as whether the interpretation is full and accurate cannot be judged by the difference in length of time of the original speech and the interpretation unless there is reliable evidence to show that the difference is unreasonably great which is not what happened in the present case.  Moreover, such complaint has never been raised with the TCAB and the judge.  This ground of appeal fails. 

27.  Under the present screening mechanism the Director, the TCAB and the courts in their consideration of a non-refoulement claim are required to meet the high standards of fairness as stipulated by the law.  The important thing is that in doing so they would invariably consider all possible grounds of the non-refoulement claim of an applicant.  The ground of appeal of the appellant that the present screening system is inappropriate is totally unfounded. 

28.  The appellant’s allegations had already been thoroughly examined by the TCAB and the judge was correct in holding that the TCAB was entitled to make the findings that it did. 

29.  We agree with the decision of the judge that there is no merit in the appellant’s application.  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 for judicial review. 

30.  The further submission of the appellant during the appeal hearingthat his life would be in jeopardy on return to Bangladesh because he has no money cannot assist him in this appeal as the focus is on the decision of the judge in the court below, not on the underlying facts, which are for the Director and TCAB to determine.  

Order

31.  For the reasons set out above, there is no merit in the appeal which must be dismissed.