HALIM ABDUL v. KAY RANSOME, ESQ., TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 481/2018

[2019] HKCA 354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 481 OF 2018

(ON APPEAL FROM HCAL 936/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal from the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 14 September 2018 refusing to grant leave to the applicant to apply for judicial review.

Background 

2.  The applicant is a national of Bangladesh.  He allegedly entered Hong Kong on 16 August 2015 and was arrested by the police on the same day.  He lodged his non-refoulement claim by two written representations dated 19 September and 23 September 2015. The factual background of his case was summarized in [2] – [6] of Form CALL-1 dated 14 September 2018 (published as [2018] HKCFI 2054).

3.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, and rejected his claim by two notices of decision dated 13 April 2016 and 30 December 2016.  The former covered the torture risk[1], the BOR 3 risk[2], the persecution risk[3]; and the latter the BOR 2 risk[4].

4.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”).  After an oral hearing on 20 January 2017, the Board did not accept the applicant’s account relating to his detention and threat by a gangster allegedly engaged by the creditors of SMUS.  Furthermore, the Board found that the applicant did not play a prominent role in the BNP and was not individually targeted by the AL supporters. Internal relocation was also considered to be a viable option for the applicant. The Board concluded that the applicant failed to demonstrate that he would be subjected to ill-treatment by the members of AL if returned to Bangladesh.  The Board dismissed the applicant’s appeal/petition on 24 October 2017.

The Judge’s decision

5.  The applicant applied to the court for leave to apply for judicial review against the Board’s decision.  He also filed an affirmation in support of the application, and advanced therein 8 grounds for seeking reliefs.  The grounds were summarized by the Judge at [12] of Form CALL-1.  The applicant also complained that the hearing bundle was only given to him just few days before the hearing before the Board, rendering him insufficient time to prepare for the hearing.

6.  It should be noted that none of the grounds for judicial review referred specifically to the rejection of a certificate produced by him concerning his position as vice-president in the volunteer group of BNP.

7.  Upon the applicant’s request, an oral hearing was held on 19 April 2018.  After hearing the applicant, the judge refused to grant leave to the applicant to apply for judicial review.  The Judge’s reasons in refusing leave were set out in [13] – [18] of Form CALL-1 as follows:

“ 13. These are however just 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.

14. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board with the majority of the documents in English and without the assistance of an interpreter there was simply insufficient time for him to prepare for the appeal.

15. 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 should be well familiar to the applicant as they had earlier already been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at the appeal hearing before the Board he was assisted by an interpreter but he never raised any issue with the hearing bundle or requested the adjudicator for further time or adjournment to enable him to better prepare for his appeal. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

16. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm from those clients of the applicant and the AL supporters is a localized one and that it not unreasonable or unsafe for the applicant to relocate to other part of Bangladesh, they were therefore entitled to conclude that there is no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. 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.

18. 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.”

The appeal

8.  The applicant filed a notice of appeal and the affirmation in support on 27 September 2018. 

9.  The applicant filed a supplementary notice of appeal on 28 September 2018, which he advanced the following grounds of appeal:

(a)  The Judge made a wholesale dismissal of the applicant’s grounds for seeking relief and the Judge’s decision fell short of “rigorous examination and anxious scrutiny”;

(b)  The Board erred in giving no regard to his certificate proving his position in BNP and in failing to give reason to do so;

(c)  The Board erred in characterizing his role in BNP as “low level”; and

(d)  The Board erred in relying on outdated country of origin information (“COI”).

10.  By a letter dated 5 October 2018, the applicant gave consent for this appeal to be heard by a two-judge court.

11.  In the skeleton submissions of 10 December 2018, the applicant elaborated on his grounds of appeal as set out in his supplementary notice of appeal. In those submissions, he put forward argument for the first time in the judicial review proceedings that the Board erred in rejecting his documentary evidence on his connection with BNP as the vice president of the volunteer group.  

12.  The applicant also attached to his skeleton submissions colour-copies of three undated certificates purportedly issued by senior members of BNP showing that he was the Vice President of Bangladesh Jatiotabadi Seccasebokdal of Shariatpur Zila. These certificates were apparently notarized in early December 2018. On the face of these documents, they were signed by Md. Ruhul Amin Munshi, Advo: Shahadat and Md. Fazlul Karim Mia respectively. He identified these documents as Exhibits A1, A2 and A3. Exhibit A1 was, as explained later by him, the certificate he used before the Board which is now, according to the applicant, authenticated by a notary public.

13.  We heard the appeal on 3 January 2019. At the hearing, he attempted to produce some documents which he said were originals of A1, A2 and A3 plus another similar certificate signed by Advocate Ruhul Kabir Rizvi. The Court declined to accept those documents as they should have been properly produced by way of affirmation. 

14.  In light of the new documents, we gave the following directions:

(1)  The papers of the appeal shall be served on the Director of Immigration by the applicant on or before 24 January 2019. Leave is also given to the Director’s legal representative to inspect the court file and make copies of the same.

(2)  The applicant shall file and serve on the Director an affirmation on or before 24 January 2019 exhibiting the documents he placed before the Torture Claims Appeal Board including the letter by the president of the Shariatpur Bangladesh Jatiotabadi Seccasebokdal referred to at paras 35 and 61 of the Board’s Decision and the originals of the documents he attached to his skeleton submissions of 10 December 2018 as exhibits A1, A2 and A3 and the new document of 13 December 2018 handed up at the hearing on 3 January 2019.

(3)  The applicant shall also file and serve on the Director on or before 24 January 2019 submissions explaining the basis for the admission of exhibits A1, A2 and A3 as evidence in light of the criteria laid down in Ladd v Marshall, viz,

(a)  That the evidence could not have been obtained with reasonable diligence for use at the trial;

(b)  That the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and

(c)  That the evidence must be such as is presumably to be believed or it must be apparently credible, though it need not to be incontrovertible.

(4)  The Director shall lodge and serve supplemental bundle and skeleton submissions by 21 February 2019.

(5)  The appeal shall be adjourned to 20 March 2019 at 10:00 am (estimated length: 30 min). The Director shall attend by counsel.

15.  Pursuant to these directions, the applicant filed an affirmation of 23 January 2019. In the affirmation, he explained that he was assisted by a caseworker at a non-governmental organization called the Justice Centre in the preparation of his skeleton submissions and he realized for the first time the Board attached no weight to his certificate. He was advised by the caseworker to have the certificate authenticated by an independent notary public in Bangladesh. He therefore proceeded to do so (by handing over the certificate used before Board to a friend to be taken back to Bangladesh for it to be authenticated) and also asked his brother to obtain other evidence to corroborate his position in BNP.

16.  After arranging for notarization by his brother, the applicant obtained through Whatsapp images of Exhibits A1, A2 and A3 and the fourth document he produced at the hearing of 3 January 2019.

17.  He said in his affirmation that he obtained originals of A1, A2 and A3 through registered mail in late December 2018. He also obtained the original of the fourth document through a BNP member called Raju when he came to Hong Kong.

18.  The exhibits he attached to the affirmation of 23 January 2019 were copies. In a letter of 8 February 2019, he informed the Court that he had been told to keep the originals by staff at the Registry.       

19.  The originals of A1, A2 and A3 and the fourth document were produced under affirmation by him at the hearing of 20 March 2019. They were marked as exhibits A1, A2, A3 and A4 respectively.

General principles

20.  Before we address the merits of the appeal, we would highlight the following general propositions which this Court has adopted in dealing with an appeal in non-refoulement cases:

(1)  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 scrutinizing 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  Further, due to the difference in the role of the court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(5)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). 

Discussion

21.  In this appeal, the applicant relied on new evidence in the form the certificates A1, A2, A3 and the fourth document.  Though A1, without notarization, had been produced before the Board, it was given no weight for the reasons set out at [60] to [62] of the Board’s Decision.

22.  The Board did not simply reject it due to the prevalence of documentary fraud in Bangladesh.  For the reasons given at [60] the Board was entitled to be skeptical regarding the extent of involvement of the applicant in BNP.

23.  In so holding, we bear in mind the observations of Sedley LJ in Karanakaran v Secretary of State for the Home Department [2000] 3 All ER 449 (a case relied upon by the applicant in his submissions[5]) at 479,

“The question whether an applicant for asylum is within the protection of the convention is not a head-to-head litigation issue. Testing a claim ordinarily involves no choice between two conflicting accounts but an evaluation of the intrinsic and extrinsic credibility, and ultimately the significance, of the applicant’s case. It is conducted initially by a departmental officer and then, if challenged, by one or more tribunals which, though empowered by statute and bound to observe the principles of justice, are not courts of law. Their role is best regarded as an extension of the initial decision-making process: see Simon Brown LJ in R v Secretary of State for the Home Dept, ex p Ravichandran [1996] Imm AR 97 at 112. Such decision-makers, on classic principles of public law, are required to take everything material into account. Their sources of information will frequently go well beyond the testimony of the applicant and include in-country reports, expert testimony and—sometimes—specialised knowledge of their own (which must of course be disclosed). No probabilistic cut-off operates here: everything capable of having a bearing has to be given the weight, great or little, due to it. What the decision-makers ultimately make of the material is a matter for their own conscientious judgment, so long as the procedure by which they approach and entertain it is lawful and fair and provided their decision logically addresses the convention issues. Finally, and importantly, the convention issues from first to last are evaluative, not factual. The facts, so far as they can be established, are signposts on the road to a conclusion on the issues; they are not themselves conclusions.”

24.  In the same case, Brooke LJ said at p.469,

“ This approach does not entail the decision-maker (whether the Secretary of State or an adjudicator or the Immigration Appeal Tribunal itself) purporting to find ‘proved’ facts, whether past or present, about which it is not satisfied on the balance of probabilities. What it does mean, on the other hand, is that it must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur (or, indeed, that they are not occurring at present).”

25.  In the present appeal, the Board did not commit the error of not taking account of the applicant’s connection with BNP in the overall assessment of risk of harm. It is clear from the reasons given by the Board that it took account of the conflicts between BNP and AL and the applicant’s participation in rallies and processions of BNP subject to AL attacks in assessing the risk of harm. The Board also accepted that he may have incurred injuries in such attacks. But the Board did not accept that he was targeted by AL, see [64].

26.  On the materials we cannot say the Board was wrong in such assessment even if A1, A2, A3 were given their face value. The contents of these documents are the basically same. They certified that the applicant was the vice president of the volunteer group. We note that in the affirmation of 23 November 2017, the applicant himself described this group (at para 6 on page 4) as “sister organization of BNP doing voluntary work”. Even assuming that the applicant was the vice president of such a group, it could not materially affect the assessment of the Board on the risk of harm coming from AL.

27.  Further, in light of the Board’s assessment on viability of internal relocation, the outcome of the case would not be different.

28.  A1, A2 and A3 does not satisfy criterion (b) in the Ladd v Marshall test.

29.  Further, since A1 without notarization was a document signed before 23 February 2016 (as it had been produced by the applicant at the interview on that date to the Immigration officer), we fail to see how it can be properly notarized more than 2 years later on 6 December 2018. Quite obviously, the document was not signed before that notary public. It is not clear to us the basis on which the notary public authenticated this document. We do not accept the applicant’s assertion that the notary public conducted investigation or verification of his affiliation with the BNP before notarizing the documents. He admitted that he had no personal knowledge of what the notary had done. The primary task of a notary public is to certify that the documents were made by the signatories and such certification should only be given when the documents were signed before him. 

30.  A2 and A3 were notarized by the same notary public. The doubt we had regarding the notarization of A1 also affect our assessment on the reliability of A2 and A3.

31.  As regards A4, it is not clear the source of information for the signatory in saying on 13 December 2018 that the applicant is on the list of harassment and that the ruling party had been threatening him. 

32.  In our view, the applicant fails to satisfy criterion (c) in the Ladd v Marshall test.

33.  Moreover, we do not accept the applicant’s explanation for his failure to advance any ground before the judge in terms of a challenge based on A1. In the court below, he obviously had the assistance of someone familiar with English in the preparation of a very lengthy affirmation of 23 November 2017 to support his application. With due diligence, he should have realized that the Board declined to give any weight to A1.

34.  A2, A3 and A4 were not produced before the Director, the Board or the Judge.  The applicant did not explain why he could not have done so if he wished to support his case on risk of harm due to his position in BNP.  There is no evidence that these notarized certificates could not have been obtained with reasonable diligence at an earlier stage.  

35.  Thus, criterion (a) is not satisfied.

36.  In our view, the applicant failed to satisfy the requirements under Ladd v Marshall (supra).  We therefore refuse to allow such evidence to be admitted in this appeal.  

37.  In the present case, based on the evaluation of evidence, the Board found that the applicant failed to demonstrate that he would be at risk of being subjected to ill-treatment if refouled.  It also found that internal relocation was a viable option for him. As explained above, the evaluation of evidence and the assessment of viability of internal relocation are within the province of the Board, and the court will not interfere with its evaluation and assessment unless there are public law grounds to do so.  The Judge, after rigorous examination and anxious scrutiny, could not find any reasonably arguable grounds to challenge the findings of the Board.

38.  We do not accept the bare assertion of the applicant that the Judge failed to consider the Board’s decision with rigorous examination and anxious scrutiny.   

39.  Having considered the materials available before us, as well as the skeleton submissions of the applicant, we cannot find any either.  We agree with the Judge that leave to apply for judicial review should be refused. In the absence of any viable ground to challenge the Judge’s decision, it is not for this Court to re-assess the applicant’s complaints about the decision of the Board. It suffices for us to reiterate what was said in Re Mizan Sikder [2019] HKCA 20 at [17] in respect of a judicial review based on grounds similar to those advanced before the Judge in the present case.

40.  For these reasons, we dismiss the appeal.