BEGUM SHUFIA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 19/2023, [2024] HKCA 241

On Appeal from [2022] HKCFI 3544

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 19 OF 2023

(ON APPEAL FROM HCAL NO 2446 OF 2019)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This is the Applicants’ application for leave to (i) amend the Notice of Appeal dated 19 January 2023, and (ii) adduce new evidence, namely, the 1^st Applicant’s 3^rd Affirmation affirmed on 25 October 2023, in support of the proposed amended grounds of appeal.

2.  The Applicants’ appeal is against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 25 November 2022 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 25 July 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 21 August 2015.

BRIEF BACKGROUND

3.  The Applicants are nationals of Bangladesh.  The 1^st Applicant married a person named MD Nazir Ahmed Sarkar (“the Husband”) in 1997, and gave birth to the 2^nd and 3^rd Applicants on 28 May 2006, in Bangladesh.

4.  The Husband last entered Hong Kong on 1 August 2006, and was permitted to remain as a visitor for 3 days.  He did not leave Hong Kong after the expiry of his limit of stay.  He was arrested by the police on 2 June 2011 for overstaying, and lodged a torture claim on 23 July 2013 and later a non-refoulement claim on 6 March 2014 after his torture claim had been rejected on 24 January 2014.  His non-refoulement claim was rejected by the Director and the Board, and his application for judicial review was dismissed by Deputy High Court Judge Bruno Chan on 22 March 2019 (HCAL 519/2017). However, the decision of Deputy High Court Judge Bruno Chan was subsequently reversed by the Court of Appeal on 24 June 2021 (CACV 159/2019), and the matter was remitted to another adjudicator of the Board for fresh consideration.

5.  The Applicants arrived in Hong Kong on 15 January 2013, and were permitted to remain as visitors for 2 days for transit purpose until 17 January 2013.  However, they did not leave Hong Kong and overstayed.  On 22 January 2013, they surrendered themselves to the Immigration Department and subsequently lodged non-refoulement claims, alleging that they would be (i) harmed or killed by members of the East Bengal Sorbohara Party (“SP”), who were political rivals of the Husband’s party (Bangladesh Workers’ Party), and/or (ii) forced to convert from the Ahmadi faith to Sunni Muslim by the 1^st Applicant’s maiden family, and their religious freedom would be adversely affected.  The claims of the 1^st, 2^nd and 3^rd Applicants were all based on the same facts as alleged by the 1^st Applicant.  The 1^st Applicant relied on 3 particular incidents which happened between 1998 and 2007 in support of her claimed fear of harm or injury at the hands of the SP people.  Details of the Applicants’ claims have been summarised by the Judge at §§1-8 of the CALL-1 Form dated 25 November 2022 (“the Decision”).

6.  By a Notice of Decision dated 21 August 2015 (“the Director’s First Decision”) and a Notice of Further Decision dated 26 September 2017 (“the Director’s Second Decision”), the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4], finding that (i) the level of risk of harm from the SP people and the 1^st Applicant’s maiden family upon their return was low, (ii) state protection was available to the Applicants, and (iii) internal relocation was a viable option to them.  As for the claims based on BOR 20 (rights of children), BOR 22 (equality before and equal protection of law), and BOR 23 (rights of minorities) raised by or on behalf of the 2^nd and 3^rd Applicants, the Director considered that those rights were not absolute or non-derogable, and therefore no non-refoulement obligation would arise from those rights alone (in reliance upon the judgment of the Court of Final Appeal in Ubamaka Edward Wilson v the Secretary for Security (2012) 15 HKCFAR 743).  In any event, the Director considered that the materials and information relied upon by the Applicants had been sufficiently dealt with when considering their absolute and non-derogable rights under the Hong Kong Bill of Rights (eg BOR 2 and 3), and the Applicants’ reliance on the rights under BOR 20, 22 and 23 did not add anything to their claims.

7.  On 2 September 2015, the Applicants lodged an appeal to the Board against the Director’s First Decision.  The appeal was heard on 10 October 2017.  At the hearing, the Applicants were legally represented.  Although the appeal was against the Director’s First Decision only (as it was lodged prior to the date of the Director’s Second Decision), the Adjudicator considered all grounds under the USM, including BOR 2, in its decision dated 25 July 2019 (“the Board’s Decision”).

8.  The Board rejected the Applicants’ non-refoulement claims on all applicable grounds, and dismissed their appeal/petition (see §§105 and 106 of the Board’s Decision).

9.  The Board’s reasons for its decision have been summarised by the Judge at §21 of the Decision, which it is not necessary to set out in this judgment.

THE JUDGE’S DECISION

10.  On 23 August 2019, the Applicants, then acting in person, filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  An Amended Form 86, settled by the Applicants’ former counsel, was filed on 9 February 2022 with the court’s leave.

11.  In the Amended Form 86, the Applicants raised 6 intended grounds of review (“JR Grounds”).  They were summarised by the Judge at §24 of the Decision, as follows:

“(1) No separate consideration of children’s claims and failure to consider child-specific risk.

(2) Failure to take into account relevant matters and to give reasons was procedurally unfair and a misdirection in law.

(3) The Adjudicator’s decision to attach no weight to any of the Applicant’s evidence which amounts to hearsay and/or speculation and which is unsupported by any other credible evidence is an error of law and/or irrational.

(4) The finding that the 1^st Applicant’s evidence in relation to her rape was purely hearsay/speculative was irrational and/or unreasonable.

(5) The rejection of the medical documents submitted by the Applicant was irrational and the requirement to corroborate with documentary evidence was an error in law.

(6) The rejection of the newspaper article which reported the Applicant’s abduction was irrational and/or unreasonable.”

12.  The Applicants’ application for leave to apply for judicial review was heard by the Judge on 20 October 2022.  At that hearing, the Applicants were represented by counsel.  By the Decision dated 25 November 2022, the Judge refused to grant leave to apply for judicial review.  In the Decision, the Judge considered the 6 JR Grounds individually and rejected all of them (§§28-59). The Judge concluded that the Applicants’ intended application for judicial review had no merits and no reasonable prospect of success, and made the Order accordingly.

THE APPEAL

13.  In their Notice of Appeal dated 19 January 2023, the Applicants, then acting in person, raised the following grounds of appeal against the Order:

(1)  “Appeal Ground 1” relates to JR Grounds 1 and 2. The Applicants contended that the Judge misapplied the Court of Appeal’s guidance in Fabio [2002] HKCA 971 concerning the requirements for an independent assessment of the claims of the 2^nd and 3^rd Applicants.  In particular, the Judge erred in finding that –

(a)  The 2^nd and 3^rd Applicants’ claims had to be rejected simply because some aspects (but not the entirety) of the 1^st Applicant’s claims were disbelieved (§30 of the Decision);

(b)  The Board had no duty to inquire into relevant child specific risks where the 2^nd and 3^rd Applicants were legally represented (§§31-32 of the Decision);

(c)  There were no factual bases for the 2^nd and 3^rd Applicants’ claims, other than a mere citation of the relevant rights under BOR 20, 22 and 23, and that there was “simply no evidence” on the additional grounds to show that the 2^nd and 3^rd Applicants would be at risk (§§34-35 and 42 of the Decision).

(2)  “Appeal Ground 2” relates to JR Grounds 3 to 6. As explained later in this judgment, Appeal Ground 2 is no longer relied upon by the Applicants in the appeal.

THE PRESENT APPLICATIONS

14.  The Applicants’ appeal was originally scheduled to be heard on 31 October 2023.  However, shortly before the date of the hearing, the Applicants’ current solicitors (Daly & Associates) filed a Notice to Act for the Applicants, and the 1^st Applicant filed a written consent to act as the next friend of the 2^nd and 3^rd Applicants in the appeal, on 25 October 2023.

15.  Also on 25 October 2023, the Applicants filed a summons seeking leave to amend the Notice of Appeal, and to adduce the 1^st Applicant’s 3^rd Affirmation as new evidence in the appeal.

16.  The proposed amendments of the Notice of Appeal involve:

(1)  the “perfection” of the “Fabio Ground”, ie Appeal Ground 1;

(2)  the removal of Appeal Ground 2; and

(3)  the introduction of a new ground, namely, that the Board wrongly failed, when assessing the Applicants’ claims, to take into account the Husband’s non-refoulement claim, his evidence and the Board’s findings in respect of his claim (“the New Ground”).

17.  The proposed new evidence consists of 2 categories of documents[5]:

(1)  Category 1 relates to various documents in respect of the Husband’s non-refoulement claim, namely –

(a)  a torture claim form dated 23 July 2018;

(b)  an excerpt of the documentary evidence (with English translation) submitted by the Husband in support of his claim;

(c)  a notice of decision dated 24 January 2014;

(d)  a decision of the Torture Claims Appeal Board dated 10 June 2014;

(e)  a notice of decision dated 30 November 2015;

(f)  a decision of the Non-refoulement Claims Petition Office dated 19 May 2017; and

(g)  correspondence with the Board from 19 April 2018 to 7 May 2018.

(2)  Category 2 comprises 2 documents:

(a)  the Applicants’ Skeleton Arguments/Submissions dated 27 September 2017 (“the Skeleton Arguments”); and

(b)  an excerpt (Section 7) of the Home Office’s “Country Policy and Information Note – Bangladesh: Religious minorities and atheists” (“the COI Material”).

18.  On behalf of the Applicants, Ms Samantha Lau argues that:

(1)  The revisions to the Fabio Ground only brush up Appeal Ground 1.  They do not alter the substance of that ground.  The amendments cause no prejudice to the other side.  They are necessitated by the fact that Appeal Ground 1 was initially drafted by the Applicants in the absence of legal assistance.  The amendments should be allowed so that the Fabio Ground can be properly argued before the Court.

(2)  Leave to introduce the New Ground should be granted because, amongst other things –

(a)  The New Ground is meritorious.  The Husband’s evidence is highly relevant and indeed critical to the Applicants’ claim: (i) their claims are predicated on risks arising from the Husband’s political activities; and (ii) only the Husband (not the 1^st Applicant) would have first-hand knowledge and details of the underlying facts.  The Board knew at the outset that the Husband’s evidence was decisive, which unfortunately had “gone amiss”.  The Board, in fulfilment of its joint duty of endeavour, should have exercised its power under s 22 of Schedule 1A to the Immigration Ordinance and s 20 of the Petition Guide to summon the Husband as a witness and/or ask him to produce relevant documentary evidence to the Board.  The Board failed to do so and instead proceeded to reject the 1^st Applicant’s evidence because the Husband did not give evidence at the hearing.  Hence, the Board’s Decision is tainted by the non-observance of the high standards of fairness, and/or the adverse findings are unsafe in that they were reached without consideration of the relevant evidence of the Husband.

(b)  The New Ground goes to a material error of the Board’s Decision and it is in the interest of justice to allow it to be argued in the appeal.  If the Court discerns a fundamental error in the Board’s Decision, the error should be dealt with: (i) so that the Government would not be acting in contravention of its international obligations (even though the Applicants did not raise the issue below), and (ii) in view of the fact that the life and limb of the Applicants are at stake.

(c)  The issues raised by the New Ground are relatively confined: (i) whether the Husband’s evidence and claim are relevant to the Applicants’ claims, (ii) whether the Board ought to have obtained his evidence in light of the joint duty of endeavour in the circumstances, and (iii) whether the Board’s failure is material.  While they are mixed questions of law and fact, an extensive exercise of fact-finding is not required. Further, the proceedings thus far have been “ex parte”.  The other side has suffered no discernible prejudice.  If the Court sees fit, the Applicants would undertake to further amend the Amended Form 86 to include the New Ground.

19.  In relation to the proposed new evidence, Ms Lau argues that the Court should exercise its discretion to admit the evidence for the following reasons:

(1)  There is a strong public interest to do so in the present case.  The appeal concerns the proper interpretation and application of the Fabio principles, which are relevant not just to the Applicants but other existing and future non-refoulement claimants, as well as the Putative Respondent and Putative Interested Party.  Also, fundamental rights are at stake.

(2)  If the proposed new evidence is ultimately accepted by the Court, it discloses a case of arguable procedural impropriety and illegality of the Board’s Decision.  Without the proposed new evidence, the Court would not be able to assess various aspects of the lawfulness (or unlawfulness) of the Board’s Decision.

(3)  It would be an affront to one’s sense of justice not to admit the proposed new evidence.  The evidence, if ultimately accepted by the Court, would likely have an important influence on whether Board’s Decision can stand.

(4)  There is no issue concerning the cogency and credibility of the documents proposed to be adduced as evidence.  Neither the Board nor the Department of Justice has raised any concern on this aspect.

(5)  The failure to adduce the proposed new evidence below was not intentional.  The Category 1 documents were not produced simply because the Applicants did not appreciate the significance of the error now proposed to be advanced as the New Ground in support of the appeal.

DISCUSSION

20.  In relation to the proposed amendments of Appeal Ground 1, the Fabio Ground was before the Judge, and he dealt with it at §§28-39 of the Decision.  Having regard to the fact that the Applicants were acting in person at the time when the original Notice of Appeal was filed, and the minor Applicants (ie the 2^nd and 3^rd Applicants) were not properly represented at that stage, we consider that leave should be granted to the Applicants to amend Appeal Ground 1.  The Category 2 documents, ie the Skeleton Argument and the COI Material, proposed to be admitted as new evidence in support of the amended Appeal Ground 1 were before the Board.  The Skeleton Argument would be relevant to a proper understanding of what was actually argued before the Board, while the COI Material was (we are told[6]) specifically referred to by the Board at §85 of the Board’s Decision.  In all the circumstances, we are prepared exceptionally to grant leave for these 2 documents to be adduced as new evidence in order that the Court can properly consider and deal with the amended Appeal Ground 1 in the substantive appeal, even though the Ladd v Marshall Conditions may not be fully satisfied in the present case.

21.  The position is different, however, in respect of the New Ground and Category 1 documents.  The gravamen of the Applicants’ complaint is that the Board failed to discharge its joint duty of endeavour to summon the Husband as a witness and/or ask him to produce the Category 1 documents.  It will be recalled that the Applicants were legally represented at the hearing before the Board.  Although the mere fact that they were legally represented did not negate the Board’s joint duty of endeavour, it is a significant factor for considering whether there was any breach of such duty on the part of the Board.  Generally speaking, the legal representative of a non-refoulement claimant would be in a much better position than the Board to assess whether a witness should be called to give oral evidence and/or produce documentary evidence before the Board.  The legal representative may be privy to information which is not known to the Board.  For example, the legal representative may have interviewed the witness and formed an unfavourable impression of his credibility, or come to the view that some information in the relevant documents may not be helpful to the claimant’s appeal.  In the present case, there is no explanation as to why the Husband was not called by the Applicants’ former lawyer to give evidence before the Board or produce the Category 1 documents.  It is not suggested that the Applicants’ former lawyer was negligent, or gave wrong advice to the Applicants which resulted in the Husband not being called to give evidence.  Thus, the failure to call the Husband to give evidence or produce the Category 1 documents might well have been a deliberate or calculated decision.  In the circumstances, it is, we consider, incumbent on the Applicants to give a full and proper explanation as to why the Husband was not called to give evidence and produce the Category 1 documents before the Board.  The Applicants have singularly failed to do so.  

22.  Ms Lau submits that the Board rejected the 1^st Applicant’s evidence “because the Husband did not give evidence at the hearing”.  This does not seem to us to be a fair way of putting the matter.  What the Board found was that the 1^st Applicant’s evidence in relation to all 3 Incidents was very vague and generalized, and her assertion that the SB people were responsible for the attacks was based solely on her own speculation which was itself based entirely on the hearsay evidence of what she had been told by the Husband (see §70 of the Board’s Decision).  At the hearing before Judge, the Applicants’ counsel argued that “the Board had failed to [assess] the credibility of the applicant’s evidence by taking into account that she could not be expected to produce witness or full documentary evidence for the events and it should give the benefit of the doubt to the applicant” [emphasis added] (see §46 of the Decision).  If the Husband could give or produce relevant and credible evidence, there was no reason why the 1^st Applicant could not be expected to call him as a witness to give oral evidence or produce relevant documentary evidence, there being no suggestion that he was not ready and willing to do so.  The argument now raised by the Applicants that the Board failed to observe the high standard of fairness because it failed to summon the Husband to give oral evidence and/or produce relevant documents is contradictory to the stance adopted before the judge.  This opportunistic argument has no merits whatsoever.

23.  In all the circumstances, we consider the Applicants’ argument that the Board failed to discharge its joint duty of endeavour is not reasonably arguable.  Further, this ground of review is not raised in the Applicants’ Amended Form 86, and is thus not open to the Applicant in these proceedings.  Ms Lau submits that the Applicants would undertake to further amend the Amended Form 86 to include the New Ground.  The problem is that even if leave is given to the Applicants to re-amend the Amended Form 86, there would still be no consideration or finding by the Judge on this issue.  The Court of Appeal’s approach in dealing with appeals in non-refoulement cases is well-established. 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’s decision, the appeal should be dismissed (Nupur Mst v Director of Immigration [2018] HKCA 524, at §14).  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).  To permit the Applicants to raise the New Ground in the appeal would require the Court of Appeal to examine the Board’s decision afresh, contrary to the well-established approach of the Court.

24.  For the above reasons, we decline to grant leave to the Applicants to introduce the New Ground.  Having reached this conclusion, we would also decline to grant leave to the Applicants to adduce the Category 1 documents as new evidence in the appeal.

DISPOSITION

25.  We grant leave to the Applicants to (i) amend the Notice of Appeal as per the draft Amended Notice of Appeal attached to the Applicants’ summons dated 25 October 2023, except Ground 2 thereof, and (ii) adduce the Category 2 documents mentioned in §17(2) above as new evidence in the appeal. There shall be no order as to the costs of the Applicants’ summons of 25 October 2023.