RE KHAN IMRAN

CACV 154/2018

[2018] HKCA 559

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 154 OF 2018

(ON APPEAL FROM HCAL 556/2017)

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J U D G M E N T

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Hon Cheung CJHC (giving the judgment of the court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 4 May 2018 refusing leave to apply for judicial review.

2.  On 14 June 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions.  He also directed that if such submissions were not lodged within the prescribed time (ie not less than 28 days before the hearing), the applicant would be deemed to have waived his right to have an oral hearing and elected to have this appeal disposed of on paper.

3.  On 27 June 2018, the hearing of this appeal was fixed for 29 August 2018.  When the hearing date was fixed, the applicant was reminded to comply with the directions of the Registrar of Civil Appeals.

4.  Despite the directions and reminder, the applicant did not lodge any skeleton submissions.  The hearing date was therefore vacated, and the applicant was notified by letter dated 8 August 2018 accordingly.  We now deal with this appeal on the basis of the material before us.

Background

5.  The applicant is a Bangladeshi national. He arrived in Hong Kong on 3 November 2007 with permission to remain as a visitor for 7 days.  He did not depart upon the expiry of his permission to remain but overstayed illegally.  He was arrested by the police on 16 April 2008 and lodged his torture claim on 21 April 2008.  His claim was taken to be a non‑refoulement claim upon the commencement of the Unified Screening Mechanism.

6.  According to the applicant, he was a member of the Bangladesh Nationalist Party (“BNP”).  It was his claim that his uncle, a supporter of the Awami League (“AL”), had always intended to occupy the land which belonged to his family.  After the caretaker government came into power and BNP lost its leading position in the government, his uncle started to claim possession of the family land.  In or about November 2006, a few days after BNP’s stepping down from power, his uncle went to the applicant’s home and threatened to kill him if he failed to comply with his request for transfer of the land to him (the uncle).  A few days later, members of the AL went to the applicant’s home looking for him.   As the applicant was not at home at the time, the AL people threatened the applicant’s mother that they would find and kill him.  Because of the threats, the applicant left Bangladesh for Singapore and Malaysia.  He stayed there for about 45 days and returned to Bangladesh after the expiry of his visa.  He hid in Badda, Dhaka, without having any trouble.  During that time, he travelled to Nepal and India in about February 2007 and to India in May 2007.  He left Bangladesh again on 27 September 2007 and stayed in the Mainland between 29 September 2007 and 3 November 2007, before coming to Hong Kong as described.

7.  By a notice of decision 7 January 2016, the Director of Immigration rejected the applicant’s claim.  The director considered that, as the applicant had never suffered any harm or injuries from his uncle and the AL people, the ill-treatments experienced by the applicant did not attain the minimum level of severity required by case law.  The director also found that the applicant’s uncle was only influential in his home locality, and the applicant’s perceived risk of harm would be low if he returned to Bangladesh and relocated out of his home district.  The availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm.  The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

8.  By a notice of further decision dated 30 December 2016, the director assessed the applicant’s BOR 2 risk[4], and determined the risk against him.

9.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 26 January 2017.  After hearing the applicant, the board found that the applicant’s account was incredible and implausible.  The board took the view that if the applicant was genuinely in fear for his life, he would not have returned to Bangladesh after he left the country and would have sought protection at the first available instance.  Furthermore, as the applicant’s uncle had never threatened to kill his father when his father was still alive, it was inexplicable why his uncle would want to kill the applicant in order to get the family land.  The board also found no evidence suggesting that the applicant’s uncle and the AL people were acting in an official capacity.  The board considered the concept of extended state acquiescence but found no evidence suggesting that the Bangladeshi government had systematically failed to discharge its duties or tolerated any unlawful acts.  The board further found, as did the director, that the ill-treatments suffered by the applicant did not attain the minimum level of severity.  The applicant’s appeal was dismissed on 11 August 2017.

The deputy judge’s decision

10.  The applicant filed the form 86 on 25 August 2017.  The intended application for judicial review was in respect of the board’s decision.  While the form 86 did not contain any grounds for seeking relief, the applicant deposed in his supporting affirmation of 25 August 2017 that:

“… there are many irrelevant facts in [the] decision made by [the] Torture Claims Appeal Board dated 2 June 2017. Officer erred in assessing the level of risk of harm to be low on alleged reasons given by him in several Paragraphs. I did not receive any invitation letter by which Immigration asked me for additional facts and grounds. There is some error in law in my decision. Decision maker just relied on COI information and my previous facts which were favor on reject my claim. Actual life occur different situation than mentioned COI information. Officer prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.” (sic)

11.  In exhibit “KI” to his supporting affirmation, the applicant further argued:

(a)  the board failed to make full and proper inquiry into the relevant country of origin information (“COI”) (para 9);

(b)  the board failed to consider the concept of extended state acquiescence and failed to evaluate as to whether there was a “consistent pattern of gross, flagrant or consequence (sic)” (paras 11 & 15); and

(c)  the board cherry-picked the COI material, ignored those parts suggesting corruption on the part of the Bangladeshi police, failed to give sufficient weight to the COI material that supported the applicant’s claim, and approached the COI material on a selective basis (paras 13, 14 & 17).

12.  The deputy judge held an oral hearing on 28 December 2017, and refused the leave application on 4 May 2018. She gave these reasons in the CALL-1 form:

“12. The applicant did have somebody submit new documents to this court after filing this application which were not before the TCAB. His explanation was that it has been difficult for him to get documents from his country until now, this is despite the fact he has been here since 2007. I explained that I will not take into account evidence not considered by the TCAB. It would not be appropriate in an application of this nature. I advised him that if he had a fresh claim he should approach the Director and the Immigration Department.

13. I have considered with rigourous examination and anxious scrutiny the adjudicator’s decision and find no fault in it. He analysed the material, claim and evidence carefully. The grounds in the applicant’s affirmation are not clearly or coherently set out and I have had to try and decipher what grounds he relies on. He submits the adjudicator has failed to properly consider, research and fairly deal with COI information. He cherry picked information that resulted in an unreasonable finding. He failed to assess the applicant’s evidence against the COI material. He failed to consider human rights abuses in Bangladesh. He failed to consider extended state acquiescence.

14. Firstly, the adjudicator did not find the applicant credible and in that scenario did not need to consider COI information. But he then did go on to apply the law to the applicant’s case as if he was telling the truth and still concluded that he failed to succeed in his claim. He did adopt the Director’s extensive citation of COI, his findings and quoted two publications before concluding state protection was available like the Director did.

15. The applicant did not claim there was a flagrant consistent pattern of gross mass violation of human rights and a risk to him therefore the adjudicator did not consider it. As for the concept of extended State acquiescence, this is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. There were no substances in any of the above grounds.

16. There are further complaints that relate to findings of fact which I will not disturb and have no merits. He also makes bare assertions that there are police looking for him and that his enemies have dragged him into false cases which are new submissions or assertions not previously made before the TCAB which I will again ignore as they are not appropriate for me to consider.

17. I have tried my best to decipher all the grounds of the applicant’s affirmation and I do not find any that show there was an error of law made 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. This applies also to the Director’s decision.

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

Notice of appeal

13.  The applicant filed the notice of appeal on 11 May 2018.  It was stated in the notice of appeal that:

“… the grounds of this appeal are that the Plaintiff 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.”

Discussion

14.  The crucial issue the applicant has to overcome to get leave is the evaluation of risk of harm in light of the evidence before the board.  Having heard the applicant at an oral hearing, the board duly assessed the applicant’s credibility in paragraphs 21 to 50 of its decision.  Based on the facts that he returned to Bangladesh in spite of the alleged threats and he failed to seek protection at first available instance, the board did not find the applicant’s evidence to be credible or his story plausible.  The appeal was dismissed because the board could place no credence in the applicant’s story.  As the deputy judge rightly pointed out in paragraph 14 of the CALL-1 form, the board’s conclusion was made independent of his consideration of the COI material.  Therefore, even if we were prepared to proceed on the basis that the COI material was indeed outdated and unreliable, there would still be no basis for the court to disturb the board’s conclusion on this basis.

15.  On the basis of the board’s finding on credibility, the board was perfectly entitled to conclude that there was no substantial ground for believing that the applicant would face a real risk of being subjected to ill-treatments meeting the high threshold required by law: see Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174.

16.  As we have said many times before, evaluation of the risk of harm is primarily a matter for the director and the board, and they are entitled to make such evaluation on the evidence available to them.  The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the board in the hope that the court may consider the matter afresh in the absence of any legal error: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

17.  In any event, as for the COI material, in paragraph 20 of his first decision the director highlighted those parts of the COI that corroborated the applicant’s claim, including those concerning the ineffectiveness, inefficiency, and even corruption of the Bangladeshi police. Having considered other parts of the COI that pointed to reforms and improvement of the police’s professionalism and training, the director concluded that state protection was available to the applicant.  In paragraph 71 of its decision, the board stated that it had studied the director’s analysis of the COI material and shared the same conclusion.  Accordingly, we are satisfied that both the director and the board have demonstrated that they were aware of those parts of the COI that would bolster the applicant’s claim. We cannot see any reasonably arguable grounds to challenge the board’s handling of the COI material.  Nor do we have any reason to differ from its conclusion on state protection.

18.  In this appeal, the applicant did not provide any particulars or specifics to support his criticism that the COI material was outdated, hearsay, or not officially recognised.  Nor did the applicant identify any evidence pointing to the “dramatic changes” in Bangladesh.  We do not see any evidential basis to criticise the board for its use of the COI material.  Nor is there any reasonably arguable basis to accept the applicant’s bare assertion that the sources of the COI material were unreliable.

19.  In light of the finding that state protection is available to the applicant, there is no scope for finding a risk of harm based on the concept of state acquiescence, or its extended form.

20.  Having considered the material available before us, we are of the view that the deputy judge’s observations are justified.  We are satisfied that none of the grounds relied upon by the applicant for seeking relief merits leave to apply for judicial review.  We do not find any errors of law or procedure in the proceedings before the board or the director.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  In our judgment, the deputy judge was correct to conclude that no leave should be given to the applicant to apply for judicial review.

21.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.