JEWEL SHEIKH v. TORTURE CLAIMS APPEAL BOARD

CACV 291/2018

[2018] HKCA 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 291 OF 2018

(ON APPEAL FROM HCAL 940 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 Jewel Sheikh (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 22 June 2018 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)1. 

1.2.   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 3 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 1986.  His parents owned a cow farm producing milk and he helped them in that business.  He entered Hong Kong illegally on 27 July 2013 from the mainland after having stayed there for 7 months and was arrested the next day.  After his arrest, he lodged a claim on 3 August 2013 that he should not be refouled. 

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:

-   in 2008, he began to support Bangladesh Jamaat-e-Islami (“BJI”) as he was inspired by his father who had been a member of that party for a long time and who had always been willing to help the poor and speak out in criticism of the Awami League (“AL”);

-   in 2010, he became a member of BJI; within a few months he was appointed secretary of ward no. 3 in his village;

-   in 2011, when the appellant and a more senior member called Liton left the BJI office one night, about 15 AL people approached them and asked in a threatening manner what they were doing; Liton and he ran away before anyone threatened or harmed them (“the 1^st incident”);

-   5-6 months later in 2011, the appellant was in a town 40 minutes away by bus from his village when he was assaulted by the same group of AL people (instructed by an AL chairman of the area); his head and foot were injured and he was in hospital for 2 days; the police apparently registered a First Information Report but the appellant was not given a copy; he did not approach them to follow up the case (“the 2^nd incident”); I would add here that it should be noted that a purported medical report produced before the judge (see para. 8.2(2) below) purporting to support his injuries created some doubt;

-   be that as it may, a month after the alleged 2^nd incident, his father went missing; the appellant suspected that his father had been targeted by the AL because of his membership of BJI, the good works he did and his criticism of the AL; the family went looking for him everywhere but failed to find him; they reported the disappearance to the police but even though the police assured them that they would look into the matter, nothing further was heard; the family did not follow up the case with the police, nor did they approach any other authorities, as they feared they would be harmed by AL people;

-   in early 2012, the appellant saw 10-15 AL people (he was not sure if they had been involved in the 2^nd incident) approaching him; he ran away (“the 3^rd incident”);

-   4-5 days later, the appellant saw 10-15 AL people (some of whom he thought may have been involved in the 2^nd incident) approaching him; he ran away again (“the 4^th incident”);

-   the following year (2012), Liton paid and arranged for the appellant to fly to the PRC because he was worried that the appellant would also be harmed; the appellant said he was questioned for some time by Immigration officials at the airport in Bangladesh;

-   his father has still not been found.

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.

5.1.   “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 1 September 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 25 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 at which the appellant was present.  After assessing his claim, the Board dismissed the appellant’s appeal for the reasons set out in its Decision (“the TCAB’s Decision”).

7.2.   The TCAB found that the appellant was not a truthful witness because there were discrepancies in his evidence.  However, the only example given in the Decision2 was that there were discrepancies between the versions given to the Director and the Board as to where at the airport the interview with the Immigration official took place, and how long it took.  With respect, these are details relating to his departure from Bangladesh and are only peripheral to the allegations he had made to support his claim.

7.3.   As for those allegations, the father’s disappearance warranted serious consideration by the Board.  However as far as this piece of evidence is concerned, it is not known what the Board thought of it. TCAB said generally that the appellant’s evidence “amounts to hearsay, speculation and unreliable evidence”.  With respect, these are 3 different criticisms, but the Board did not indicate that in respect of (1) the father’s long standing membership of the BJI, (2) the work he did for it, (3) his constant criticism of the AL, and (4) his disappearance, which allegation the Board regarded as being hearsay and/or which was speculative and/or which was unreliable.

7.4.   Further, it seems the Board had accepted the father’s disappearance as a fact, because it observed that “the alleged inaction of the Police in relation to the 2^nd incident and the disappearance of the Appellant’s father may largely be due to the inaction of the Appellant himself”3.

7.5.   Although the TCAB did point to the fact that the appellant’s mother has not been threatened or harmed by the AL, the Board accepted that she was old and not of good health4, nor was there any evidence that she was a member of the BJI, personal circumstances different from those of the appellant and his father.

7.6.   The TCAB also pointed to the fact that according to the appellant, Liton had not been threatened or harmed by the AL, but that shows a failure to understand the appellant’s case, which is that his fear was that the AL people would go after him, not only because he was a BJI office-bearer like Liton, but because he is his father’s son.  See however the further development regarding Liton referred to in para.14.1 below. 

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’s grounds were:

“11. On 23 November 2017 the applicant filed his Form 86 for leave to apply for judicialreview of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following ground for his intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to make sufficient research and inquiry into COI and failure to have regard to relevant and up-to-date COI research in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account of relevant COI and for taking account or cherry-picking irrelevant COI in the consideration of his claim;

(3) irrationality in the adjudicator’s failure to make finding of facts as to whether gross and mass violation of human rights exist in Bangladesh;

(4) irrationality in the adjudicator’s failure to analyze or assess whether state protection exists in Bangladesh and in misdirecting himself on the law for erroneously stating the extended meaning of state protection;

(5) irrationality in the Board taking into account and putting weight in irrelevant considerations of the applicant’s claim;

(6) procedural impropriety for failing to call for psychological or psychiatric evaluations and reports on the applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8) procedural impropriety/unfairness in insufficient representation from assigned duty lawyer for the applicant and hence not affording him a fair procedure.”.

8.2.   However, it would appear that before the hearing, there were the following developments.  On 29 January 2018, the appellant sent to the Court a number of documents which included:

(1) a document bearing reference no. S. No.-364/17 on the letter paper of BJI dated 14 December 2017 and signed by its President and General Secretary referring to the appellant’s work for the party and the threats faced by its members;

(2) two documents from Munshiganj District Hospital, one of which supports the claim that the appellant suffered head and leg injuries, and states that he was admitted on 8 December 2011 and released on 12 December 2011, and the other, while repeating those dates, contained the words “Patient e above particulars was admitted into this hospital on due to road accident 28/12/2016 the complaints of –”.  Of course by 2016, the appellant was already in Hong Kong, having arrived in 2013;   

(3) a document from the BJI naming its missing members, which included as No. 232 the appellant’s father and as No.728, the appellant’s friend Liton.

These documents were not included in the papers before us, but we have been able to locate them from the lower court file.   

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge.  As far as some of the new documents from BJI were concerned, the judge took the following view:

“15. As for the documents allegedly from BJI of its missing members over the years including his father and his friend, even if one were to accept them at their face value would not in my judgment assist the applicant in advancing his case any further than as found by both the Director and the Board that his suspicion that the disappearance of his father had anything to do with the AL people as no more than mere hearsay and speculation.”

Appeal to Court of Appeal

10.1.   By a Notice of Appeal filed on 5 July 2018, the appellant appealed the Judge’s order to this court.  The grounds of appeal were:

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

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

10.2.   The affirmation was a regurgitation of his previous affirmations.  

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 appellant’s country of origin (“Country of Origin Information”, or “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 Immigration5and 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 wrong6.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall7are 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 within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  Without derogating from the legal principles set out in §11 above, the following has also to be borne in mind.  As was held in Idrees Faisal and others v Torture Claims Appeal Board and another [2018] HKCA 579 at para.13, although primarily the TCAB is the fact-finding tribunal, the court still has to subject the Board’s reasoning to anxious scrutiny and if fresh evidence is presented which was not before the Board, the court should consider the circumstances in which it has arisen, and the possible impact of such evidence on the applicant’s claim and/or the Board’s fact-finding.  

14.1.   In the present case, there was produced before the judge a document from the BJI listing members who were missing, which included the applicant’s father and his friend Liton (“the Missing Members List”).  This had not been placed before the Director or the Board. 

14.2.   On being presented with the Missing Members List, one would have expected the judge to (a) find out from the applicant when he received it, and why he produced it only now, and then (b) if appropriate, consider whether (i) the applicant should be left to make a new claim to the Director by reason of change in circumstance or (ii) to send the case back to the Board to re-consider its findings in light of the List (if found to be authentic).  It will be remembered that one of the points which led the Board to dismiss the claim was that no harm had befallen Liton (see para 7.6 above).   

14.3.   However the judge dealt with the Missing Members List in the way set out in para. 9 above.  With respect, the father’s disappearance had been accepted as a fact by the Board.  In the absence of evidence that the father had suddenly abandoned his family, his business and his long-standing political activities, or unless someone outside the AL confesses to his abduction (or worse), the reason for his disappearance must of necessity be a matter of deduction from inference, and cannot be brushed aside as “mere hearsay or speculation”.  The inference that the AL was involved in the disappearance is bolstered by the evidence suggesting Liton’s disappearance as well.  These are matters to be examined when considering what risks to which the appellant is subject, and the extent to which he can rely on state protection.  

15.  It is therefore necessary for this basis of the claim to be reconsidered, and as this is the foundation for the claim, other aspects (eg such as state acquiescence and internal relocation) would likewise need to be reconsidered.

Order

16.  For the reasons set out above, we would allow the appeal, set aside the judge’s decision and give leave to the appellant to commence judicial review proceedings.  In accordance with Order 53 rule 5, he should file and serve an originating summons within 14 days from the date of this judgment.  The originating summons should set out the specific grounds on which he relies, with reference to the discussion in para. 14 above.  It will then be for the judge hearing the judicial review proceedings to decide what further directions to give for the further progress of the proceedings.