TITU AHMED v. JOHN T GLASS, ESQ.

CACV 124/2019

[2019] HKCA 844

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 124 OF 2019

(ON APPEAL FROM HCAL 707 OF 2018)

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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 Mr Titu Ahmed (“the appellant”) from an order of DHCJ Josiah Lam (“the judge”) given on 6 March 2019 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 Appeal Board (“TCAB”) given on 13 April 2018 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 decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of Bangladesh now aged 40-41.  From 1993 to 2006, he ran a grocery business there.  He arrived in Hong Kong from the Mainland on 13 July 2006.  He overstayed and was arrested by the police on 18 September 2006.  After his arrest, he raised a torture claim on 3 November 2006 which was dismissed by the Director and the TCAB on 26 March 2013 and 5 November 2013 respectively.  He did not appeal.  Subsequently, he raised a claim for non-refoulement on 13 May 2013 and provided a Supplementary Claim Form dated 12 April 2017.  On 15 June 2017, the Director refused his claims under persecution risk, BOR 3 and BOR 2.  On 20 February, 2018 he appeared before the TCAB on appeal.  On 13 April 2018, the TCAB dismissed his appeal.  On 23 April 2018, he lodged the application for leave to apply for judicial review against the TCAB’s decision of 13 April 2018.   

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 2000, the appellant became an ordinary member of the Bangladesh Awami Jubo League (“BAJL”) (a youth wing of Awami League (“AL”)). In early 2006, some members of the Bangladesh Nationalist Party (“BNP”) requested him to join their party, but he refused their offer.  So he claimed those BNP members were angry with him.

-  On 13 March 2006, there was a conference in Jhinaidaah City of AL members.  While walking there, the appellant and others were attacked by a group of 35 to 40 males with weapons.  He recognized several of them were BNP members.  He was injured and went to a clinic for treatment (“the Assault Incident”).  He went to his friend’s home in a neighbouring village and spent 2 days there.

-  On the same day of the Assault Incident, BNP members filed an assault case against the appellant among others.  BNP members and/or the police came to his home to search for him.  They assaulted his father and brother with sticks.  His family did not report the assault to the police because BNP was in power. 

-  On 15 March 2006, the appellant went to the house of his friend Ujjal which was close to his own house. He asked Ujjal to repay money due to the appellant.  Ujjal tried to hit him but accidentally hit his own father who later died.  Ujjal’s mother filed a false murder case against the appellant.  He did not reveal the truth to the police as he was afraid of being arrested by the police.

-  In mid-March 2006, the appellant went to stay with his uncle until early July 2006.  His uncle heard rumours from villagers that BNP members and the police were after him.  He went to Dhaka and learned that BNP members had come to his uncle’s place to search for him.  The appellant decided to leave his country in July 2006.

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”, 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  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 Decision

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 rejected the appellant’s claim for reasons set out in a decision given on 15 June 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, and “persecution risk”.

The TCAB’s Decision

7.1  The appellant then appealed to the TCAB which held a hearing at which the appellant was present.  An interpreter was present to assist him.

7.2  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 found that the appellant’s claims were contradictory, his oral evidence was vague, and he made up parts of his case.  For example, he claimed he did not stay near his home after the Assault Incident and yet he claimed to have visited Ujjay’s home (which was close to his own) in order to ask for repayment of money only a few days after the Assault Incident (TCAB Decision, [56], [60], [79]).  He showed no interest in finding out whether there was a police warrant out for his arrest on the alleged false murder charge ([81]).  He also said that in relation to the Assault Incident, the other persons in his group had settled with their attackers but he never attempted to do so ([57], [70]).  He accepted the BNP was no longer in power ([64]) nor could he explain why he could not relocate to any places in Bangladesh ([82]). 

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  He stated his grounds in his Notice of Application and supporting affirmation, which were summarized in [29] - [33] of the Judge’s Decision:

“29. The Applicant complained the Adjudicator unlawfully fettered his 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.

30. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (“COI”); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

31. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.

32. The Applicant further 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 of what happened. He complained the Adjudicator failed to make appropriate arrangement.

(33) Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.”

The Judge’s Decision

9.  The appellant appeared at the hearing before the judge.  As mentioned earlier, the judge refused leave for reasons set out in his Decision, in particular,

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

38. 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.’

39. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. In his decision dated 15 June 2017, the Director considered the Applicant's non-refoulement claim with respect to the remaining three applicable grounds including BOR2 risk.

40. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 15 June 2017. He complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

41. The Applicant complained there were a lack of and/or insufficient legal representation. 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.

42. 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, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

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

44. 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.

45. The Director stated in his letter dated 2 August 2018 that the appeal bundle was served on the Applicant by hand on 9 February 2018. That was 11 calendar days (or 6 working days after excluding two Sundays and three Lunar New Year public holidays) prior to the Board hearing scheduled for 20 February 2018. Thus, the bundle was served on the Applicant in time.

46. 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 that the bundle was difficult or voluminous.

47. 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.

48. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

49. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he found the Applicant failed to establish any persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

50. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

51. There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

52. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He 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. He 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

53. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 13 March 2019, the appellant appealed the judge’s order to this court.  He stated the following in his affirmation filed on the same date:

(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.

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 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 2 July 2019.

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. 

13.1   In respect of the first ground of appeal, the judge noted ([49]) that the TCAB had found that since the appellant had failed to establish any persecution risk, BOR 2 risk or BOR 3 risk, it was not necessary for the TCAB to consider the issues of state acquiescence.  That was clearly correct.  There is nothing in the first ground of appeal. 

13.2   In respect of the second ground of appeal, the judge had discussed and analyzed the grounds of judicial review advanced by the appellant in detail [37-53].  There is no merit in this ground either.

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.