MAMUN OR RASHID v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 401/2018

[2019] HKCA 61

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 401 OF 2018

(ON APPEAL FROM HCAL 1014 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 Mamun Or Rashid (“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 1 December 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 decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.1  The appellant is a national of Bangladesh.  He alleged that in 2000, he started a business in grocery and money exchange together with his friend Mr BR in Bangladesh.  Mr BR contributed BDT 2 million to the business while the appellant contributed BDT 3 million, of which BDT 1.5 million was obtained from his father and the remaining BDT 1.5 million borrowed from his 2 friends, Mr MR and Mr M, and a bank, each in the sum of BDT 0.5 million.  I will refer later to alleged events concerning the business.

2.2  From July 2005 to 9 September 2005, the appellant made multiple trips between Hong Kong and Guangdong.  Subsequently the appellant overstayed in Hong Kong and was arrested by the police on 24 October 2006.  He lodged his claim for non-refoulement claiming that if he returned to Bangladesh, he would be harmed or killed by his creditors to whom he owed money.  His claim was rejected by the Director on 5 January 2011.  His notice of petition against that decision was dismissed on 8 April 2011.  Subsequently, the appellant lodged a second claim for non-refoulement on 5 September 2015. 

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 the two creditors were connected with the ruling party in Bangladesh and he would be harmed by these people for non-repayment of the aforesaid loans:- 

-  The appellant alleged that in early 2003, he found that Mr BR had stolen a sum equivalent to BDT 4 million in foreign currency from their company and disappeared.  The business was subsequently closed.

-  The appellant made a report to the local police a few months later but the police did not assist him.

-  Mr MR and Mr M came to the appellant’s home and demanded repayment of the aforesaid loans.  They threatened to assault the appellant if he did not do so and they also made a complaint to the police.

-  Mr MR and Mr M used their connections with the senior leaders of the ruling party to search for the appellant in order to torture him.  (However it transpired that the “torture” he referred to comprised merely of pressure put on him to repay his loans: §47, TCAB Decision). He alleged Mr MR and Mr M also went to his family home regularly to look for him, and threatened and assaulted his family members. 

-  The appellant claimed that in early 2005, he was assaulted in Dhaka by 5 men associated with the ruling party.  He knew 2 of them, Mr B and Mr R, who demanded that he repay the aforesaid outstanding sums to Mr MR and Mr M.  The appellant claimed he suffered a fractured ankle (which he later changed to a dislocated ankle) and chest bruising, and was hospitalised for a month.

-  The appellant made a complaint to the police but no assistance was given, he said because the police were bribed.

-  Since the appellant was afraid of being hurt, he decided to leave Bangladesh and came to Hong Kong.  He, however, claimed that he received telephone calls from Mr MR 4 to 5 times in Hong Kong threatening to kill the appellant and his parents if he returned to Bangladesh.

-  The appellant claimed that he could not be relocated to another part of Bangladesh because the senior leader in the ruling party is very powerful and would be able to track him.

-  The bank made demands against the appellant for repayment and sent the police to his home.

-  In 2010 (4 years after he left Bangladesh), the appellant claimed that Mr MR and Mr M complained to the police about his father, who was a former chairman of Jamaat-e-Islami in his home village. They accused him of being a war criminal.  In 2014, his father was arrested for 5 days but was released on bail, and his father’s case was transferred to Court.  Subsequently however, the appellant claimed that his father, mother and sister-in-law moved to Saudi Arabia in early 2016 with the assistance of his brother who had worked in Saudi Arabia since 2000.  

-  The appellant claimed that his family home was burnt down by Mr MR and Mr M in April 2016.

-  The appellant also claimed that he joined the Bangladesh Nationalist Party as a general member in 1997.  After an election in about 2000, he and his brother had an argument with Awami League (“AL”) supporters at a tea shop and they were threatened by one of the AL supporters with a pistol.  He received telephone threats continuously from his enemies against his brother. 

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.  According to the Director’s record, the appellant had previously made a torture claim on 25 November 2006 which was rejected by the Director and TCAB.  The appellant then made a second claim for non-refoulement on 5 September 2015.  The Director’s representative had interviews with the appellant.  The appellant had legal assistance to prepare both of his claims.  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 29 May 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, and “persecution risk” other than “torture risk” (“the Director’s Decisions”) which had been dealt with in the first claim of the appellant.

The TCAB’s Decision

7.1  The appellant then appealed to the TCAB which held a hearing on 8 November 2017 at which the appellant was present.  At the said hearing, TCAB also assessed the torture risk.  The TCAB asked various questions and discussed with the appellant his two claims for non-refoulement.  The TCAB gave the appellant the opportunity to make submissions at the said hearing.

7.2  The TCAB thereupon examined his claim.  As the Judge put it,

“8. In its decision the Board found the applicant not a credible witness for reasons of his vague, evasive and inconsistent evidence as well as the implausibilities in his claims and his non-persuasive explanations, and rejected his claim that he had operated a money-exchange business with a partner or that he had borrowed money from his creditors or that he was being looked for by any creditor or by the police, or that he departed Bangladesh in fear of any harm as claimed, and concluded his non-refoulement claim has failed on all applicable grounds.”

The Board dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, TCAB found that there were only contractual disputes between the appellant and Mr MR, Mr. M and the bank. The appellant had not claimed the police complaints against him were political in nature as they related to his debts.   With regard to the “torture” by the leader of the ruling party, the appellant gave inconsistent evidence about the name of the AL leader, and it transpired that the “torture” comprised of pressure put on him to repay his debts. When TCAB asked the appellant about his alleged assault in Dhaka, he said he could not remember the names of Mr B or Mr R and could not remember that they were connected to AL.  The appellant also gave inconsistent evidence about his relocation to Dhaka, how his father was able to leave Bangladesh despite the accusation that he was a war criminal, the burning down of his family house, how Mr MR and Mr M would have knowledge of the appellant’s telephone number in Hong Kong, and the subsequent admittedly false allegation of the death of his brother (which he had apparently copied: §57 TCAB Decision).

7.3  For the above reasons, TCAB found that the appellant was not a credible witness. There was no evidence to suggest that anything more serious than hollow threats would occur if he returned to Bangladesh.  He had failed to show that any treatment he might face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged 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 both the TCAB and the Director named as the proposed respondents.  However since the TCAB’s Decision had been attached, the judge correctly took the application as being one against that Decision as well.  The appellant did not set out any grounds in his notice of application and in his affirmation in support, simply made bare assertions with respect to procedural impropriety, error/misdirection in law and irrationality/illegality, and asked for the matter to be looked into again on the documents. 

The Judge’s Decision

9.1  The appellant appeared at the hearing before the judge on 3 August 2018. 

9.2  As mentioned earlier, the judge refused leave for reasons set out in his Decision, in particular

“10. These are all very broad and vague assertions of the applicant without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decision, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, whilst others just do not seem to make any sense or relevancy to his case in the absence of any explanation or elaboration from the applicant.

11. Given the fact that the applicant’s claim was doubted by the Director and rejected outright by the Board on his credibility for the detailed reasons and analysis set out in their respective decisions, any attempts by the applicant to challenge their decisions over their use or reliance of COI as to the situations in Bangladesh would in my view be futile and pointless, as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the clear findings by the Board against the applicant as a credible witness and the implausibilities of his claim, I am unable to find any basis or merits in any of those grounds of the applicant.

12. 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.

13. 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 16 August 2018, the appellant appealed the judge’s order to this court.  The grounds of appeal were, in brief, (1) that he would face hardship if he were refouled; (2) the TCAB’s reliance on the “source of news” was not officially recognized and hearsay; and (3) the cases cited in the TCAB’s Decision were outdated.

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 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 15 October 2018 submitting that “high standards of fairness” are required for the judge to deal with his application for leave for judicial review of the appellant’s claim for non-refoulement.   

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 TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did.  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  The arguments relating to COI ignore the fact that the TCAB’s Decision was predominantly based on its finding of fact that there was no real risk of the appellant suffering any of the 4 risks referred to earlier in this Judgment[5].

13.3  Finally, general assertions of a blanket nature cannot be accepted as realistic grounds 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.

15.  At the hearing before us, the appellant mentioned that after recent elections in Bangladesh, the ruling party has been torturing the common people there.  Insofar as he considers that that has any effect on his individual situation, that is not a matter for this appeal.  If he considers that that effects a change of circumstances, it is up to him to decide whether it merits a fresh claim for non-refoulement.       

Order

16.  For the reasons set out above, this appeal must be dismissed.