RE ISLAM NURUL

CACV255/2019

[2019] HKCA 1065

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 255 OF 2019

(ON APPEAL FROM HCAL 1043 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Islam Nurul, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 31 May 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 30 May 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 13 June 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 45, is a fear of being attacked or even killed by certain members of the Awami League (“AL”) namely, Isahaq, MD Azizul Haque, A Razzak and their associates who had harassed the applicant between 2003 and 2006 with a view to pressurising him into joining the AL. Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant started to attend meetings of the Bangladesh Nationalist Party (“BNP”) since his secondary school days.

(2)  He held the position of the president of the Jubodal of the BNP at the No 4 Gajir Tek Union of the Char Bhadrashon Police Station from 1997 to 2001.

(3)  One day in May or June 2002, the applicant and Nur Mohammad (Maija) Biswas (“Maija”), the president of the Jubodal of the BNP at the Char Bhadrashon Police Station level, were attacked by a group of people armed with choppers, revolvers and guns whom, the applicant suspected, came from a rival faction of the BNP. After beating the applicant for 4 to 5 minutes, they let him go, leaving Maija at the scene. Maija eventually died from excessive blood loss after having one of his legs cut off.

(4)  Fearing for his own safety, the applicant went into hiding from mid to late 2002, after which he quit the BNP and gave up politics altogether.

(5)  However, in 2003, a few AL leaders including Isahaq and MD Azizul Haque started to convince Maija’s family that the applicant was responsible for Maija’s death. They did so to put pressure on the applicant to join the AL. These AL leaders wanted to recruit the applicant in the belief that his former followers in the BNP would also join the AL if the applicant should do so.

(6)  The applicant was, however, firm in his refusal to join the AL. They therefore decided to destroy him and his family. 

(7)  One day in April 2006, at about 2 pm, some masked men abducted the applicant from his workplace at Mirpur, Pallabi.  The applicant could recognise 3 of his abductors to be Haider, Isahaq and Kajol, all AL members. He was taken to Kasba, Jessore for 2 days. His family was demanded to pay a ransom of 500,000 Bangladesh Taka (BDT) right away and another BDT1,000,000 within 6 months. To secure his release, the applicant’s family paid BDT500,000 to Haider, Isahaq and Kajol. Although they did release the applicant after such payment, the kidnappers threatened to kill the applicant if the balance ransom was not paid within 6 months.

(8)  After his release, the applicant filed a report with the Mirpur police station but no one had been arrested. 

(9)  In the following months, the applicant’s kidnappers kept telephoning him to remind him to pay the outstanding ransom. As he could not raise so much money, the applicant fled the country to save his life.

(10)  After his departure, both of the applicant’s younger brothers in Savar, Dhaka namely, Azizul Haque who was operating a diagnostic centre and Saidul Islam who was running a car workshop were attacked by AL people at their business premises in June 2010 and February 2011 respectively.  Even their employees were beaten up. Azizul Haque’s shop was also looted. Saidul Islam was further abducted for 3 days with a ransom demand for BDT2,000,000. To procure his release, the applicant’s father promised to pay the kidnappers BDT300,000 immediately and BDT1,700,000 within 2 to 3 months. In July 2011, Azizul Haque and another brother of the applicant, Shahidul Islam, fled Bangladesh for Spain.

(11)  Upon learning that Azizul Haque and Shahidul Islam had fled, the AL people demanded Saidul Islam to pay BDT2,000,000 within 1 month in September 2011. They had also beaten him up a few times. This drove Saidul Islam into hiding in different places until he fled to Dubai in March 2012.

(12)  Thereafter, the AL people began to harass the applicant’s father to pay the ransom of BDT2,000,000 and to disclose his sons’ whereabouts. 

(13)  The applicant’s father complied with neither demand. On 26 January 2013, MD Azizul Haque, together with 10 to 15 other persons, beat the applicant’s father to death on the street. 

(14)  After the applicant’s father’s death, MD Azizul Haque and his people evicted the applicant’s mother from, and unlawfully occupied, their house.

(15)  On 14 May 2017, the applicant’s mother told him that A Razzak and his people had also unlawfully entered into occupation of the farmland of his uncle, Abu Bakar, and had beaten Abu Bakar up on the street the day before (i.e. 13 May 2017) upon learning that he had made a complaint of the trespass to the village chairman.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant left Bangladesh, and arrived in Hong Kong as a visitor, on 29 September 2006. He had permission to stay for 14 days.  On 12 October 2006, he left for China and re-entered Hong Kong on 14 October 2006, again with permission to stay for 14 days. He overstayed since 29 October 2006. He was arrested on 6 March 2008. 

4.  The applicant raised a torture claim under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Claim”), in respect of which he had (1) submitted a Torture Claim Form on 14 March 2013 (“TCF”), (2) provided written answers to the Director’s questionnaire dated 29 April 2013 and (3) attended a screening interview by the Director’s representative(s) on 28 May 2013. By a notice of decision dated 5 July 2013, the Director rejected the Torture Claim. The applicant’s appeal dated 18 July 2013 to the Board was dismissed on 25 November 2013.

5.  The applicant then raised the NRF Claim by written representation dated 10 July 2013, which was later supplemented by a Supplementary Claim Form dated 15 May 2017. In processing the NRF Claim, the Director’s representative(s) conducted another screening interview on 29 May 2017 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decision

6.  The Director found the NRF Claim unsubstantiated under any of the remaining grounds for non-refoulement protection[1]: persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  Other than his own account, parts of which were based only on hearsay, the applicant had not adduced a single piece of objective evidence in support of any of his bare assertions.

(2)  The applicant’s claimed fear of harm from the AL leaders he named, who allegedly targeted him due to his long term affiliation and close connection with the BNP and his adamant refusal to join the AL, was the centerpiece of his claim. Yet he was not conversant with the ideology or political motif of either the BNP or the AL.

(3)  Even taking his account at its highest, the applicant was not a prominent or influential political figure in light of his local level position and ordinary activities in the BNP. There was no reason for the alleged sustained pressure by the named AL leaders and their associates to recruit the applicant.  

(4)  Any past grudge should have dissipated after such a long lapse of time.

(5)  Anyway, the applicant’s claimed enemies had not inflicted any physical harm on him in either of their encounters before the applicant left Bangladesh. The absence of past physical or mental ill-treatment of the applicant indicated an unlikely or low future threat to his life upon his return to Bangladesh. 

(6)  There was no indication that the police or any state authorities of Bangladesh authorised, consented to or acquiesced in the violence allegedly committed against the applicant and his family.

(7)  There is objective country of origin information (COI) showing that reforms have been and are ongoing in Bangladesh with positive results in the effectiveness of the police force and the justice system in recent years. The availability of state protection would further lower or even negate the level of risk (if any).

(8)  Internal relocation alternatives (e.g. to Chittagong or Dhaka) are available. And it is not unduly harsh or unreasonable for an abled-bodied adult of prime age like the applicant to relocate within Bangladesh. There is no evidence that the applicant’s feared enemies are powerful or resourceful enough, or would still have the will or motivation to expend their time or resources, to find the applicant all over Bangladesh after more than 10 years.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board on 23 June 2017.

8.  After a rehearing on 12 February 2018, at which the applicant testified and answered questions by the Board through a Bengali interpreter, the Board was not persuaded that the applicant would face any persecution risk, “BOR 2” risk or “BOR 3” risk in Bangladesh and dismissed the applicant’s appeal on 30 May 2018.

9.  First, the Board noted many inconsistencies and gaps in the applicant’s account. In particular, the Board spotted that the applicant had stated, and initialled 4 times, in the TCF that he was the president “in CHHATRA DAL Student wing of BNP party”, as opposed to the Jubodal which is the youth wing. The applicant’s unfamiliarity with the Jubodal and insensitivity to its difference from the Chhatra Dal as well as his inability to articulate any meaningful information about the BNP or its ideology cast grave doubt on his claimed position and importance in the BNP. And if he were not the BNP leader he claimed, the subsequent events underpinning the NRF Claim would have a weaker foundation.

10.  In summary, the Board rejected the applicant’s claim that he faced ill-treatment, or any real risk of it, from A Razzak, Isahaq, MD Azuzil Haque or other AL supporters and found, inter alia, that that there was no or no reliable evidence that the applicant had suffered any physical or mental suffering of the requisite severity; that the assertion that AL supporters would pursue, and could find, the applicant wherever he went in Bangladesh was groundless and fanciful; and that there was no or no reliable evidence that the government of Bangladesh was unwilling or unable to afford protection to the applicant.

11.  That being the case, it was unnecessary for the Board to consider the issue of internal relocation alternatives. Nevertheless, the Board agreed with the Director that, if necessary, it would not be unduly harsh for the applicant to relocate to another part of Dhaka or another large city such as Chittagong or Rajshahi to be free of harm (if any).

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1043/2018 on 8 June 2018 (“Form 86”), supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds summarised by the Judge in [30]-[32] of the Form CALL-1 dated 31 May 2019, [2019] HKCFI 1393 (“Form CALL-1”) as follows:

“30. The Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

31. The Applicant also complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused. He complained the Adjudicator failed to make appropriate arrangement.

32. The Applicant further complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay.”

13.  After hearing the application in open court on 8 September 2018 at which the applicant was present and was assisted by a Bengali interpreter, the Judge refused leave. His reasons can be found in [36]-[49] of the Form CALL-1:

“Discussion

36. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities

37. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul:-

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” 

38.  The Applicant complained he received the appeal bundle only a few days before the Board hearing.

39.  According to para.9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para.12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

40.  The Applicant received the bundle on 5 February 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 February 2018. The bundle was served on the Applicant in time.

41.  The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

42.  A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

43.  The Applicant mentioned there was a lack of or insufficient legal representation. He had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 13 June 2017. 

44.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

45.  The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by interpreters when he was represented by the DLS and in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

46.  The Applicant alleged he was confused in the appeal hearing. However, he said he answered all the questions honestly. That means he knew what was asked and how to answer. The Applicant was not confused.

47.  There was no evidence the Adjudicator had relied on outdated cases, information not officially recognised or simply hearsay.

48.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

49.  The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.” (original emphasis)

Appeal to Court of Appeal and grounds of appeal

14.  By a notice of appeal filed herein on 13 June 2019, the applicant appealed against the refusal of leave for judicial review on 2 grounds:

(1)  that he “will face hardship if he is to return back to his home country” (“Ground 1”); and

(2)  that “the [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 outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (“Ground 2”)

15.  In his skeleton submission dated 15 August 2019, the applicant referred to ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim. However, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of his claim.

16.  The applicant appeared in person at the hearing of the appeal on 17 September 2019. Other than repeating his fear that his life would be in danger in Bangladesh and his hope to stay in Hong Kong for a further indefinite period of time, the applicant did not add to his notice of appeal or skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

19.  Applying these principles, first, as summarised in [6], [8]-[10] above, the NRF Claim failed on the facts and evidence at both tiers of the screening process. In particular, the Board had grave reservation about the applicant’s credibility and found primarily that he did not face any ill-treatment, or any real risk of it, from A Razzak, Isahaq, MD Azuzil Haque or any other AL supporters and that he would not be exposed to any persecution risk, “BOR 2” risk or “BOR 3” risk if he should return to Bangladesh. The applicant’s bare assertion under Ground 1 that he “will face hardship if he is to return back to his home country” goes against these findings by the Board. The question whether the applicant would be at risk if he is returned to Bangladesh is a question of fact within the province of the Board (after the Director): see [17] above. The Board heard the applicant. It provided detailed reasons in [43]-[53] of its decision for not believing the applicant’s testimony of the alleged circumstances giving rise to a risk of harm at the hands of the enemies named by him. It can be seen from [12] above that the applicant has not, by the proposed grounds for judicial review raised before the Judge, articulated any errors of law, procedural unfairness or irrationality on the part of the Board in making such adverse findings against him. Nor has he done so before this court. Ground 1 is devoid of merit.

20.  Ground 2 targets the Board’s Decision. As explained in [18] above, in dealing with an appeal against a refusal of leave for judicial review of a decision of the Board, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. The applicant has not, in either his notice of appeal or skeleton submission before us, stated in what way the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in refusing leave for judicial review of the Board’s Decision. Nor can we discern any. 

21.  Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board allegedly referred to or relied on. Nor has he alluded to any specific part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information. Ground 2 is likewise unmeritorious.

Disposition

22.  For these reasons, we see no basis to interfere with the Judge’s decision.Accordingly, we dismiss the appeal.