RE SHEIKH MD ABU BAKKAR

CACV 333/2021

[2021] HKCA 1535

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 333 OF 2021

(ON APPEAL FROM HCAL 2716 OF 2018)

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JUDGMENT

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

The appeal

1.  This is an appeal by Sheikh MD Abu Bakkar against the order made by Deputy High Court Judge To (“Judge”) on 18 June 2021 (“Judge’s Decision”), refusing him leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 22 November 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”).  Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 11 December 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 50, is a fear of being harmed or even killed by one Abdul Kadar (“Kadar”), an active member of the Awami League (“AL”), for refusing his repeated invitations to join and work for the AL.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 11 of the Director’s Decision and paragraphs 14 to 21 of the Board’s Decision and in gist in [4] to [8] of the Judge’s Decision embodied in the Form CALL-1 dated 18 June 2021, [2021] HKCFI 1759 (“Form CALL-1”).

4.  Briefly:

(1)  Kadar had attempted to recruit the applicant for the AL since around 2006.  To tempt the applicant, he also said if the applicant joined the AL, he would not have to pay “protection fee” to the AL. 

(2)  Although the applicant did not join the AL or pay it any “protection fee”, save for reiterating his invitations to join the AL from time to time, Kadar did not really do anything alarming to the applicant until 27 February 2012.

(3)  On that day, at the local AL office, armed with a gun, Kadar demanded the applicant to do something unlawful for the AL.  The applicant was adamant that he would not do anything illegal and would not support the AL.  Kadar became furious.  He forced the applicant to hold the gun and took pictures of the applicant holding the gun.  After that, Kadar threatened to send the photographs to the authorities and make the applicant a wanted person if he did not work with the AL.  The applicant threw the gun down and ran back to his shop.

(4)  Kadar repeated his threats in a call to the applicant the next day.

(5)  The applicant did not report any of his encounters with Kadar to the police or other authorities.

(6)  The applicant’s father advised him to leave home, which he did on 2 March 2012 to stay with his aunt in Dhaka.  He did not have any problem in Dhaka. However, some unknown persons had looked for him back home.

(7)  The applicant’s father later advised the applicant to leave the country to guarantee his safety.  The applicant followed the advice and left Bangladesh for Mainland China on 29 March 2012.

Illegal entry into Hong Kong and lodgment of NRF Claim

5.  The applicant entered Hong Kong illegally from Mainland China on 19 September 2013.  He was arrested by the police on 28 September 2013.  HHe raised a torture claim by written representations dated 1 October 2013 and 15 November 2013 but withdrew such claim on 15 November 2013.  At the applicant’s request, the torture claim was subsequently re-opened and processed as a non-refoulement claim under the unified screening mechanism.  

Director’s Decision

6.  After considering the information provided by the applicant in his Non-refoulement Claim Form (“NCF”) and Supplementary Claim Form both dated 16 October 2017 and at the screening interview on 15 November 2017, at which times the applicant was represented by the Duty Lawyer Service, the Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  In short, the Director assessed the risk of harm faced by the applicant to be low and further found that reasonable state protection and viable internal relocation options would be available to the applicant to negate or lower any perceived risk.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board.

8.  After a rehearing of the NRF Claim on 12 October 2018, at which the applicant testified and answered the Board’s questions through an interpreter, the Board dismissed the appeal on all 4 applicable grounds for non-refoulement protection.  In summary,the Board rejected the applicant’s evidence, noting significant discrepancies between the information provided in the NCF and the testimony given before the Board.  The Board was not satisfied that the applicant would face a real chance of harm in Bangladesh for the claimed reason in the reasonably foreseeable future.

Application for leave for judicial review and Judge’s Decision

9.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2716/2018 on 30 November 2018, the applicant sought leave to apply for judicial review of the Board’s Decision o the following grounds:

(1)   the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds 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 decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

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

10.  After a hearing in open court on 16 June 2021 at which the applicant appeared in person with the assistance of an interpreter, the Judge dismissed the application for leave for judicial review.  His reasons are set out in [12] to [23] of the Form CALL-1:

“Ground (1) – Unlawful exercise of discretion

12. Under this ground, he accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (2) – Procedural unfairness

13. The basis of the Applicant’s complaint about procedural unfairness is that the majority of the documents in the appeal bundle used before the Board were in English and the Applicant did not have sufficient time to prepare for the hearing due to his limited skills in English and his being unrepresented.

14. In Re Zafar Muazam , Re Zunariyah , Re Zahid Abbas , Re Tariq Farhan , and Re Lopchan Subash , the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security nor the judgment of FB v. Director of Immigration prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board.

15. Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Re Karamjit Singh, the Court of Appeal adopted the rationale of the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit. He has to find assistance himself from among his friends and ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

16. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. Though the appeal bundle is in English, it is basically made up of his NCF, the record of the screening interview and the decision of the Director in the Notice, including the Country of Origin Information (“COI”). He admitted that he knew what were in the NCF and the record of the screening interview. The Notice of the Director was issued to him on 11 December 2017. It was not until 12 October 2018 that the oral hearing was held. The Notice is in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing ten months to seek assistance from among his own circle. Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board. It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

17. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. His complaint about lack of legal and language assistance is over-exaggerated. At the hearing, after all these facts were put to him, he admitted there was no unfairness as a result of the lack of legal and language assistance.

18. Part of his complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and outdated, which resulted in the Board making groundless speculation that it was safe for the Applicant to return to Bangladesh. The COI relied on by the Director and the Board are all from credible and official sources, including Country Reports on Human Rights Practices for 2016: Bangladesh published by the United States Department of State; The World Factbook, published by United States Central Intelligence Agency; Country Information and Guidance on Bangladesh: Background information, including actors of protection, and internal relocation issued in November 2014 and Country of Origin Information (COI) Report on Bangladesh dated 31 August 2013 published by the United Kingdom Government; and other news reports and articles. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI.

19. In view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board did not find it necessary to consider state protection and internal relocation. Hence, the Board placed very little reliance on the COI, save for general background information in understanding the Applicant’s case. The suggestion that the Board made groundless speculation based on outdated and unreliable COI is misconceived.

20. The Court considered the complaint about procedural unfairness is totally groundless.

Ground (3) – unreasonableness and irrationality

21. As for the overall or general complaint about irrationality and unreasonableness in the Board’s findings, these grounds of complaint are against the findings of facts by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration .

22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. There were no such elements in the Decision. The Decision was utterly without fault.

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

23. The Applicant did not particularize the duty and the breach.  In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.”

Appeal to Court of Appeal - grounds of appeal and submission

11.  In the notice of appeal filed herein on 30 June 2021, the applicant only asserted that the Judge’s Decision was wrong and should be quashed because the Judge had failed to show any strong reason.

12.  In his written submissions lodged on 14 September 2021, the applicant basically reiterated in gist the allegations underlying the NRF Claim and complained that the Judge “did not find any error of law where total decision is full of error of law”.

13.  At the hearing on 12 October 2021, the applicant appeared in person with the assistance of an English/Bengali interpreter. Other than appealing for more time in Hong Kong because he still has problems in his home country, he had nothing to add to his notice of appeal and written submission.

Discussion

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

14.  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

15.  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[5]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) & (4)].

16.  As summarised in the preceding paragraph, the Court of Appeal shall interfere if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  The applicant has plainly not identified any or any arguable ground of appeal, properly so called, against the Judge’s Decision.  This should be the end of the matter.

17.  In so concluding, we have not overlooked the following additional complaints made by the applicant in his affirmation in support of the Form 86 (“Additional Complaints”):

(1)   He was confused about what was happening before the Board as he was provided with the hearing bundle just 6 days (with an intervening weekend) before the hearing with the majority of documents in English, which gave him insufficient time to prepare for the hearing due to his limited skill in English and being unrepresented.

(2)   Although he answered all the questions honestly, his credibility was found questionable, thus making it an unfair hearing due to lack of care by the Board to make appropriate arrangements in relation to the hearing bundle.

(3)   The Board made the groundless speculation that it is safe for him to return to his country of origin in consequence of reliance on sources of news that is not officially recognised or is hearsay or outdated.

18.  If the applicant had intended to rely on the Additional Complaints as grounds for judicial review, he should have stated them in the Form 86.  In any event, they are unmeritorious and thus unhelpful to the applicant.

(1)   First, most of the documents in the hearing bundle emanated from the applicant.  He should therefore have been familiar with them.  Anyways, if he had really been confused about any aspect of the hearing before the Board, whether due to the alleged late provision of the hearing bundle or otherwise, he could and should have voiced his concern to the Board through the interpreter.  Assistance could have been rendered there and then to the applicant to resolve any difficulties that he may have about any English document in the hearing bundle or any part of the proceedings.

(2)   Second, what took place before the Board was a re-hearing.  The applicant testified before the Board and answered its questions, particularly in relation to the matters allegedly giving rise to the NRF Claim.  The only lack of care on the part of the Board said to have tainted its assessment of the applicant’s credibility was a failure to make appropriate arrangements about the hearing bundle, presumably to direct the earlier delivery of the same to the applicant and the provision of translation of English documents.  We do not see how such arrangements would affect the substance of the testimony and answers on factual matters that the applicant gave before the Board.  As stated in [15] above, the court does not intervene in the absence of errors of law, procedural unfairness or irrationality in the Board’s findings, especially as to matters of fact.  It is begging the question for the applicant to say that the Board should have believed him because he had given evidence honestly.

(3)   Third, the applicant has not identified what unofficial, hearsay or outdated news that the Board had improperly relied on.      

Disposition

19.  For these reasons, we dismiss the appeal.