RIAZ MD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 328/2019

[2019] HKCA 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 328 OF 2019

(ON APPEAL FROM HCAL 228 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.1. This is an appeal by Mr Riaz Md (“the appellant”) from an order of DHCJ Bruno Chan (“the Judge”) given on 15 July 2019 dismissing his application for leave to start judicial review proceedings. The Judge’s reasons for that order were given in a document referred to as the “Form CALL-1” (“the Judge’s Decision”)[1]. 

1.2. This is the appellant’s second application applying for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB / Board”) given on 6 July 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. The appellant’s first leave application was refused by DHCJ Woodcock on 31 January 2018 in HCAL 432/2017[2]. The appellant did not lodge any appeal against the decision of DHCJ Woodcock.

Background

2.  The appellant is a national of Bangladesh now aged 25. He worked on the family farmland since childhood. In early 2013, the appellant became a member of the Bangladesh Nationalist Party (“BNP”) assisting to promote the BNP in election campaigns. His father and elder brother, Nasir, are also BNP supporters. He entered Hong Kong illegally on 17 July 2014 and was arrested by the police on the same day for being a suspected illegal immigrant. Afterwards, he raised a claim for non-refoulement on 20 July 2014. 

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 first decision made by DHCJ Woodcock in HCAL 432/2017 which will not be repeated here. Put briefly, what he alleged was that if he was to be returned to Bangladesh, he would be harmed or killed by Jahangir Miah and his people from the Awami League (“AL”) because the appellant had been involved in the boycott activities against the AL during the 2014 General Election.

4.  The appellant’s claim was examined to see if he would be subjected to any of the following risks: “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 rejected the appellant’s claim for reasons set out in a decision given on 22 July 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 24 April 2017 in respect of “BOR 2 risk”.

The TCAB’s Decision

7.1. The appellant appealed to the TCAB which held a hearing at which the appellant was present and had the assistance of an interpreter.  He testified and gave evidence at the hearing.

7.2. The TCAB reviewed the evidence of the appellant in detail. The TCAB dismissed the appeal (“the TCAB’s Decision”). Essentially, the TCAB found that the appellant provided inconsistent evidence in respect of his political background and involvement which undermined his credibility ([26]-[29]). The appellant also gave inconsistent evidence about the attack on his home by the AL and the threats to Nasir ([30]-[32]). The TCAB concluded that the appellant was not a credible witness. The TCAB found that the appellant had fabricated his claims and rejected his allegation of political involvement and his alleged fear of harm by the AL people which was remote ([33]-[34]). 

Application for leave to start judicial review and the judges’ decisions

HCAL 432/2017

8.  The appellant first took out an application in the High Court on 21 July 2017 for leave to start judicial review proceedings to quash the TCAB’s Decision. His leave application was dismissed by DCHJ Woodcock on 31 January 2018 after considering his case in detail, in particular:

“12. I have considered the papers and grounds of this application.  This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning COI material and information.  Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator’s failing to consider a consistent system of human rights violations and ground 4 criticises him for failing to consider whether State protection exists in Bangladesh.  Particulars have not been given in relation to each of these grounds and complaints.

13. However, this is not fatal when the concept of State protection and whether or not there is a consistent system of human rights violations in Bangladesh is not relevant; when the applicant cannot establish there is a real and personal risk to him if refouled.  Consideration of these concepts do not arise unless there is a substantial risk or a real personal chance he will be tortured or ill-treated if refouled.  In this case, the adjudicator made that finding there is no substantial risk or a real personal chance.

14. Grounds 6, 7 and 8 also lack particulars, for example, there was never any basis for the adjudicator to call for psychological and psychiatric evaluation: it was not part of the applicant’s case.  There were no complaints by the applicant or particulars given to the adjudicator recorded in the decision that the assigned duty lawyer failed him previously.  None of the above grounds have any merit.

15. There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  He says he was ill-prepared and confused during the hearing.  However, there is no record in the decision of any complaint raised before the adjudicator.

16. There is a complaint the Director did not screen the BOR 2 risk before it was considered on appeal but this is inaccurate and misleading when the Director made a decision on 4 April 2017 rejecting the BOR 2 risk claim and the oral hearing for the appeal was not heard until 26 June 2017.

17. There is also a complaint that the TCAB considered Country of Origin information and news sources that were hearsay and fairly outdated but again, this is inaccurate and misleading when the adjudicator had no need to consider this information when he rejected the claim on credibility.  Moreover, what information he did consider led him to agree with the applicant that there were instances of political violence in Bangladesh both at the time of the 2014 election and ongoing.  The information was broadly consistent with the applicant’s claim.

18. Ultimately, I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success, therefore, I refuse leave for judicial review.”

HCAL 228/2018 

9.  Instead of appealing from the decision made by DCHJ Woodcock, the appellant made the second leave application for his intended judicial review to quash the TCAB’s Decision. The appellant set out his grounds in his Form 86 which may be summarized as follows:

(1)  The Board failed to maintain the high standard of fairness by not delivering the hearing bundle to the appellant within a reasonable period of time, and there was a lack of interpretation. 

(2)  Lack of legal assistance and interpretation to the appellant who did not have sufficient time to prepare for the appeal hearing. At the hearing, the interpretation service was not adequate causing the appellant to be unable to give evidence. 

(3)  The Board’s decision that the appellant’s credibility was questionable was unreasonable and the appeal hearing was unfair due to (1) and (2) hereinabove.

(4)  High standards of fairness for making a decision are required and there are minimum standards of procedural fairness required in the decision-making process. 

(5)  The Board erred in approaching the matter by not questioning the Director who did not attend the appeal hearing, and not considering the country of origin information.

(6)  The Board failed to consider that the appellant lacked legal representation and did not inform the appellant that he could complain.

10.  The appellant appeared at the hearing before the Judge. The Judge refused leave for reasons set out in [7] - [10] of the Judge’s Decision.

“7. On 31 January 2018 his leave application was refused by Deputy High Court Judge Woodcock upon finding none of his grounds reasonably arguable, that there was no error of law or procedural unfairness or failure to apply high standards of fairness on the part of the Board in its decision, and that there was no realistic prospect of success in his intended application.

8. The applicant did not lodge any appeal against that decision, but instead on 13 February 2018 filed another Form 86 for leave to again apply for judicial review of the Board’s decision, and put forward essentially the same grounds or bases as before such as procedural unfairness or failure to apply high standards of fairness by the Board but all of which were already found not reasonably arguable by the Court in his previous application under HCAL 432/2017.

9. Clearly this is a case in which the principle of res judicata applies, and it is an abuse of process for the applicant to try to re-litigate his case by bringing a second judicial review in respect of the same decision of the Board after he failed to obtain leave from the Court in HCAL 432/2017, and also for failing to disclose to the Registry of the same when he filed his second Form 86 and issued his ex parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

10. In the premises and accordingly this second application by the applicant for leave to apply for judicial review of the Board’s decision is hereby struck out and dismissed.”

Appeal to Court of Appeal

11.  By a Notice of Appeal filed on 19 July 2019, the appellant appealed the Judge’s order to this court. He stated the following in his Notice of Appeal:

“….. the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal 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.”

Legal Principles

12.  The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

12.1. 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”). 

12.2. 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[3]and we will not repeat them here.  

12.3. 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[4]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[5]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

13.  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 a few days late on 26 September 2019 submitting that “high standards of fairness” are required for the Judge to deal with his application for leave for judicial review of the TCAB’s Decision. 

Discussion

14.  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. 

14.1. The appellant’s first leave application was considered by DHCJ Woodcock in detail and was dismissed as his intended appeal had no realistic prospect of success. The TCAB’s Decision was based on its findings of fact and the judge is entitled to rely on its findings.

14.2. Instead of lodging an appeal against the decision of DHCJ Woodcock, the appellant made his second attempt to apply for leave to start judicial review proceedings before the Judge. We can see no justification for the appellant to take such course. There was no change of circumstances. 

14.3. The appellant’s grounds of appeal do not bear any relationship to the Judge’s Decision. The COI information had hardly any role to play in this case.  The appellant relied on the same set of the alleged facts and his grounds of review were similar to those which had been assessed by DHCJ Woodcock. The Judge is correct that the appellant’s repeated leave application is an abuse of process.

15.  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

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