MD AKRAM UZ-ZAMAN v. WESLEY WONG, ESQ. AND ANOTHER

CACV 397/2018
[2019] HKCA 161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 397 OF 2018

(ON APPEAL FROM HCAL 1000 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 Mr Md Akram Uz-Zaman (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 3 August 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 24 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 1976.  He claimed that his father was a landlord and his parents operated a cosmetics shop in Gazipur from 2005 up to 2011.  The appellant is single and had been working at his father’s cosmetics shop at Gazipur from 2005 to 2007.  He entered Hong Kong illegally on 11 August 2007 and was arrested by the police on 4 May 2008.  After his arrest, he lodged a claim on 10 May 2008 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 if he returned to Bangladesh, he would be harmed or killed by the supporters of the political parties, including Bangladesh Nationalist Party (“BNP”) and Awami League (“AL”).  His case can be summarized below:

-   The appellant was born and raised in Kushtia, Bangladesh.  His family were supporters of AL and his grandfather was once the chairman of its Jhaudia branch.  The appellant was once a general member of the AL.

-   In 1999, the appellant’s grandfather was killed by members of Jatiyo Samajtantrik Dal (“JSD”), supported by the BNP.  The appellant wanted to avenge his grandfather’s death but as he was not supported by the AL, he then left the AL and joined the Purba Banglar Communist Party (“PBCP”), an opposing party of BNP and JSD, in 2000 as an ordinary member in anticipation that the PBCP would take revenge against BNP and JSD on his behalf. 

-   The appellant claimed that he had encountered 4 incidents which made it unsafe for him to stay in Bangladesh.

-   In 2000, the appellant was abducted by 7 to 8 members of BNP in the street when he was on his way home at night.  He was hurt and was subsequently released when his family paid the ransom.  The appellant claimed that he was told to stop seeking revenge for his grandfather otherwise he would be killed.  He had not reported this incident to the police but left home and hid in Kushtia.

-   In 2001, the appellant was arrested by the police and was taken to the Kushtia Sadar Police Station for suspected possession of illegal firearms.  Since he refused to admit the charge, he was detained for 7 days and was hurt by the police.  He was then taken to the Kushtia District Court where he pleaded not guilty and was sent to a detention centre for 3 months.  Afterwards, he was taken back to the Kushtia District Court and was released on bail with a new hearing date fixed in 2002.

-   In 2003 and 2004, the appellant claimed that there were various false criminal cases framed by BNP and JSD against him, including a case of illegal possession of arms and ammunition, and two cases of murdering 2 JSD leaders. The appellant was sought by the police and the Rapid Action Battalion (“RAB”), and it was “usual practice” that the RAB had orders to shoot on the spot if he was found.  Although the police went to his home periodically to search for the appellant, the police had not done anything to harm his family members.

-   One night at about the end of 2004, the appellant went back to his village to meet one of his relatives.  He met someone who was close to his family and was told that there were many JSD and BNP members around which was suspicious.  The appellant changed his route and was seen and shot at, but he was not hit. 

-   The appellant stayed at his village for 4 to 5 days and then went to Gazipur to join his parents.  He stayed in Gazipur peacefully from 2005 to 2007.  However, his family members suggested that the appellant leave Bangladesh for his own safety.

-   The appellant also considered that since the AL is now the party in power he was afraid that he would be in danger because he had left the AL.  On 3 August 2007, the appellant flew from Dhaka to Shenzhen using his own passport.  

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.

5.2.   “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.   “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 as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 4 June 2015 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a further decision given on 9 August 2017 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB and 3 hearings were held on 20 March 2017, 11 May 2017 and 30 October 2017 at which the appellant was present. 

7.2.   At the first hearing on 20 March 2017, the appellant said he did not have anything to say but he had a couple of case documents in the Bengali language.  The said hearing was adjourned and resumed on 11 May 2017.  The appellant produced 4 documents in the Bengali language without translation.  When asked by the TCAB, the appellant confirmed that no names were mentioned in the said documents which only reported the incidents.  The TCAB found that the said documents did not assist the appellant’s case.  The TCAB had considered all the evidence carefully at the adjourned hearing, and found that the appellant had not made out a case where he needed non-refouelment protection, nor a case where he was exposed to torture risk, BOR 3 risk or persecution risk.  The TCAB also found that the appellant had been trying to delay his application by putting up various excuses which conduct was contrary to someone who has a good case and would like to have a decision as soon as possible.  Furthermore, the facts revealed by the appellant showed that there was no urgency for him to leave Bangladesh and come to Hong Kong.  The appellant had the option of internal relocation in Bangladesh as evidenced by his move to Gazipur where he had lived from 2005 to 2007 without problem. 

7.3.   In order to be fair to the appellant, the TCAB had also directed a further hearing on 30 October 2017 in respect of the BOR 2 risk.   The appellant had produced some old papers in the Bengali language without translation claiming that he was the 8^th accused involved in a murder case.  The TCAB arranged translation of the relevant parts of the paper as alleged by the appellant.  To summarize, it was stated in one document that “no evidence was found of any offence against the accused persons arrested on suspicion” and in another document, it was stated that “Charge not established (Arrested on suspicion)”. The TCAB found that the appellant had again tried his best to delay, but failed to make out, his case. 

7.4.   For the above reasons, the TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision dated 24 November 2017 (“the TCAB’s Decision”).  Essentially, there was no evidence to suggest that anything would occur if he returned to Bangladesh.  He had failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of ill-treatment, or that there is any state acquiescence. 

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, with the TCAB and the Director named as the proposed respondent and interested party respectively. 

The Judge’s Decision

9.1.   The appellant appeared at the hearing before the judge. 

9.2.   As mentioned earlier, the Judge refused leave for reasons set out in the Judge’s Decision, in particular

“11. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

12. The applicant did however elaborate a complaint of being provided with the hearing bundle just a few days before his appeal hearing before the Board with the majority of documents including the Director’s skeleton submission in English and thereby given insufficient time to prepare for his appeal or to find an interpreter to assist him.

13. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions were already made available to him earlier when he still had legal representation, and that he was assisted by an interpreter at all of his appeal hearings during which he never raised any issue about his hearing bundle. In any event as the 2^nd hearing took place almost 2 months after the 1^st hearing while the 3^rd hearing a further 5 months thereafter, there could not possibly be any excuse for not having sufficient time to prepare even if the bundle was indeed given to him just a few days before the 1^st hearing. Accordingly, I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his first oral hearing before the Board.

14. As for the remaining complaint of the applicant in his affirmation about the Board taking more than two years from the filing of his appeal in June 2015 to the time of its decision in November 2017 which he argues that many things could have changed including situations in Bangladesh as well as the relevant COI which were therefore not up to date when considering his claim, the fact is that the oral hearings as noted above all took place towards the tail end of that period with the last one less than a month before the decision, during which he had ample opportunities to bring the Board up-to-date of any changes relevant to his claim or to raise any issue thereof, as it was certainly his duty to do so with the Board and/or the adjudicator but which he never did. Having proceeded to carefully examine the list of COI referred to by both the Director and the Board in their decisions, I do not find any basis for this complaint of the applicant.

15. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 15 August 2018, the appellant appealed the judge’s order to this court.  The appellant, however, did not state any ground(s) clearly in the said Notice of Appeal.  He only wrote: “I have country so many case murder case my against”.  In addition, the appellant has not filed any affirmation in support of the said Notice of Appeal. 

Legal Principles

11.  It should first be noted that 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 Immigration²and 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 wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are 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 not withstanding he was granted an extension of time to lodge his skeleton argument by 2 January 2019, and so his appeal was considered on the papers.   

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.   The appellant’s allegations had already been thoroughly examined by the Director and the TCAB on the facts and the judge was correct in holding that there was no error of law or procedural unfairness and no unfairness after considering those decisions with rigorous examination and anxious scrutiny.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

13.2.   Finally, general assertions of a blanket nature as set out in his affirmation in support of his Notice of Application for leave to apply for judicial review cannot be accepted as a realistic ground of appeal.

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.