RE KAMAL SHAHIDUL ISLAM

CACV203/2019

[2019] HKCA 1063

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 203 OF 2019

(ON APPEAL FROM HCAL 1184 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Kamal Shahidul Islam, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 16 April 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 11 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 22 September 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 42, is a fear of being attacked or even killed by supporters of the Awami League (“AL”) known as Chanchal, Mamum and Rubel because the applicant supported the Bangladesh Nationalist Party (“BNP”). Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant became a regular supporter of the BNP and a member of the Dhaka division of the BNP, attending meetings and rallies, in 2000. However, he did not hold any position in the BNP.

(2)  On 5 January 2004, the AL achieved sweeping victory in the general election including in the applicant’s constituency, Hazaribagh. Since then, there had been a lot of tension between the AL and the BNP in the applicant’s locality.

(3)  In around February 2014, 6 men armed with iron rods and pistols including Chanchal[1], Mamum and Rubel (who, apart from being known supporters of the AL, were also notorious criminals in the locality) went to the applicant’s shop (which sold sewing machines) in Mirpur, Dhaka to extort from the applicant 1 million Bangladesh Taka (BDT), failing which he could not continue his business. The applicant refused to pay, whereupon he was slapped hard in the face (but was not otherwise hurt). Chanchal, Mamum and Rubel left after telling the applicant that he had 1 week to pay. 

(4)  The applicant dared not report the extortion to the police because he feared retribution from people of the AL as he had heard about other businessmen in the area being locked up and beaten for not paying up. He closed down his shop immediately and hid at home in the hope that he could avoid Chanchal, Mamum and Rubel and their people.

(5)  The applicant received a threatening phone call from Chanchal about a week later but he managed to plea for 5 more days.  He was deeply shaken by the call. He changed his SIM card and continued to hide at home. Chanchal, Mamum and Rubel turned to threaten the applicant’s wife who told them that the applicant had left the country and who then also changed her phone number. Chanchal, Mamum and Rubel however did not go to their home to look for either the applicant or his wife.

(6)  In March 2014, fearing that Chanchal, Mamum and Rubel would eventually come for him, the applicant fled to his other house in Paragram, Nawabganj, Dhaka on his own. He obtained a visa to come to Hong Kong in May 2014 with the intention of seeking non-refoulement protection. However, he could not travel to Hong Kong as planned before the expiration of the visa on medical advice as he had open-heart surgery sometime in mid 2014.

(7)  He remained in hiding in Paragram, while maintaining contact with his wife and 2 sons, until February 2015. Although he did not encounter any problem in Paragram, he lived in constant fear that Chanchal, Mamum and Rubel would find him one day and would frame a false case against him when they did.

(8)  He came to the view that he could only stay away from the corrupt AL government and its supporters by leaving Bangladesh, which he did in February 2015.

(9)  After his departure, Chanchal, Mamum and Rubel have not caused the applicant’s wife and sons any trouble, though they did ask for the applicant’s whereabouts. Nevertheless, the applicant still lives in constant fear that his said enemies might kidnap his sons in Bangladesh. The applicant has also learnt from his friend that members of the AL would kill him if he should return to Bangladesh.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant left Bangladesh on 15 February 2015 on his own passport without any difficulty. He arrived in Hong Kong as a visitor on 16 February 2015 with permission to stay until 2 March 2015. He overstayed since 3 March 2015 and surrendered to the Immigration Department on 5 March 2015. 

4.  The applicant raised the NRF Claim by written representations dated 27 April and 7 May 2015. He submitted his Non-refoulement Claim Form on 3 August 2017.

Director’s Decision

5.  In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 17 August 2017 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.  The applicant produced his trade licences to prove that he had a business, which he said was the reason why Chanchal, Mamum and Rubel targeted him.

6.  The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection, i.e. torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1)  The applicant had not sustained any or any real physical injury at the hands of Chanchal, Mamum and Rubel. The low intensity and frequency of the past ill-treatment inflicted by Chanchal, Mamum and Rubel upon the applicant, just in the forms of threatening words and a slap on the face, did not attain the requisite minimum level of severity. 

(2)  It is also indicative of a small future risk of harm upon the applicant’s return to Bangladesh.

(3)  There is no indication that the police or any state authorities of Bangladesh authorised, consented to or acquiesced in Chanchal, Mamum and Rubel’s acts. It was the applicant who chose not to report them to the police.

(4)  There is objective country of origin information (COI) showing that the Bangladeshi government has in recent years taken practical steps to improve the effectiveness, and to monitor the conduct, of the Bangladeshi police force. There are also alternate avenues for seeking justice in Bangladesh. The availability of state protection would further lower or even negate the level of risk (if any).

(5)  Internal relocation alternatives (e.g. to Chittagong) are available. And it is not unduly harsh or unreasonable for the applicant, an abled-bodied adult of prime age and with many years’ experience of running his own business, to relocate within Bangladesh. The fact that Chanchal, Mamum and Rubel were out of touch with the applicant while he was in Hazaribagh shows that their influence was at most localised, making it unlikely that they would be able to locate the applicant all over Bangladesh.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board on 6 October 2017.

8.  After a rehearing on 25 April 2018, at which the applicant testified and answered questions by the Board through a Bengali interpreter, the Board dismissed the applicant’s appeal on all applicable grounds for non-refoulement protection on 11 June 2018.

9.  In short, the Board was not convinced that the applicant would face any harm, or any risk thereof, upon his return to Bangladesh. The Board was prepared to give the applicant the benefit of the doubt and accept that he supported the BNP. However, the Board found the applicant to be just a grassroots supporter of the BNP with such minimal involvement with the BNP that was not sufficient to bring him to the attention, or made him a target, of the ruling AL or their followers. The Board did not accept that the applicant or his business was targeted due to his support for the BNP; that the applicant was forced to close his business for this reason; that the applicant was ever in hiding to avoid harm from AL party members or that the applicant left Bangladesh for Hong Kong due to his fear of being harmed for his political affiliation with the BNP. In this regard, on the applicant’s own account, there was no mention of politics during the incident at the applicant’s shop in February 2014. The same group of men extorted money from other business owners in the vicinity. There is no evidence that they were motivated to do so other than for financial gain.  The applicant made the connection with the AL only after learning subsequently that Chanchal, Mamum and Rubel were AL supporters. The applicant has embellished an encounter with a group of criminals who attempted to extort protection money from him by attributing to them a political motivation when there was none.

10.  More fundamentally, the Board considered the applicant’s account of the February 2014 incident, which is the centerpiece of the NRF Claim, to be unreliable. It was so lacking in detail that the Board had “significant concerns as to whether the [applicant] was speaking from lived personal experience”.

11.  Further, while some COI may lend support to the applicant’s account that corruption and extortion are commonplace in Bangladesh and that local criminals affiliated with the dominant political party target opposing business owners and often act without impunity, the Board found the applicant’s claim that the police in Bangladesh were corrupt and would not protect him because of his membership with the BNP to be speculative as it was never put to the test as a result of the applicant’s failure to report the extortion to the police.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1184/2018 on 25 June 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision.  By the Form 86 and the supporting affirmation filed on the same date, the applicant set out his proposed grounds for judicial review, which the Judge summarised at [11] of the Form CALL-1 dated 16 April 2019, [2019] HKCFI 947 (“Form CALL-1”), as follows:

(1)  the hearing bundle was delivered to him shortly before the appeal hearing and he did not have sufficient time to prepare for the hearing;

(2)  the hearing bundle was in English, which he had difficulty in understanding; but he was not provided with the service of an interpreter;

(3)  he was confused at the hearing; and

(4)  the Board had relied upon hearsay information and outdated material in relation to the [COI] in its assessment of his situation.

13.  We note that the applicant also made these complaints against the Board in the Form 86:

(1)  The Board unlawfully fettered its discretion by refusing the appeal on the ground that it did not satisfy the requirement;

(2)  The Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness; and

(4)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

We do not find such very general complaints, lacking in any specificity, to have added to the application before the Judge.

14.  After hearing the application for leave for judicial review in open court at which the applicant was present and was assisted by a Bengali interpreter, the Judge refused leave. His reasons can be found in [12]-[15] of the Form CALL-1:

12.  As the applicant’s claim is fact sensitive and since the Adjudicator rejected his allegations, he had no factual basis in support of his non-refoulement claim.

13.  As to grounds (1) to (3), the applicant appeared before me.  He confirmed that he was assisted by his friend on the contents of the Hearing Bundle and that he was not confused at the appeal hearing.  He had no complaint against the Adjudicator or the interpreter.  These grounds fail.

14.  As to ground (4), it is only his opinion, unsubstantiated by evidence.

15.  I find that the applicant was unable to show that his proposed judicial review has any reasonable chance of success.

Appeal to Court of Appeal and grounds of appeal

15.  By a notice of appeal filed herein on 29 April 2019, the applicant appealed against the refusal of leave for judicial review on 2 grounds (“Grounds” collectively):

(1)  that he “will face hardship if he is to return back to his home country” (“Ground 1”); and

(2)  that “the [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.” (“Ground 2”)

16.  In his document with a caption “Reasons for Appeal” dated 6 May 2019, apart reiterating in general terms the risk of harm that he would face from the AL in Bangladesh because of his membership with the BNP and expressing the hope that he would be sent back only after the government in Bangladesh has changed, the applicant made the following criticisms of the Director, the Board and/or the Judge:

(1)  The Judge failed to apply the “principle of irrationality” to the Director’s Decision;

(2)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence;

(3)  The Judge did not screen the applicant’s case and the problems in Bangladesh;

(4)  The Judge did not review the applicant’s problem and the Director or the Board’s Decisions;

(5)  The Judge’s decision was unreasonable;

(6)  The Director, the Board and the Judge relied on outdated cases;

(7)  The Judge failed to use greater care and caused disappointment to the applicant; and

(8)  The Judge failed to apply the principle of procedural unfairness because the Director and the Board are required to give reasons.

17.  Then, in his written submissions dated 17 May 2019, in addition to repeating the contents of the Notice of Appeal and the said “Reasons for Appeal”, the applicant referred to ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277 and Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 (CA) for the propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement) and (2) that a decision of an administrative body exercising discretionary decision-making function may be set aside if it is “unreasonable”, without explaining the relevance of these propositions to the case.

18.  The applicant appeared in person at the hearing of the appeal on 17 September 2019. He said that he would not go back to Bangladesh and would stay in Hong Kong for some more time but was unable to specify for how long.

Court of First Instance’s role in judicial review in non-refoulement claim

19.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

20.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[7]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

21.  Applying these principles, first, as observed in the preceding paragraph, the Court of Appeal shall consider the appeal before it in light of the grounds of appeal raised by the applicant, which means the grounds of appeal set out in the notice of appeal. While a party, whether represented or otherwise, may elaborate on and/or develop in his written submission a ground of appeal of which notice has already been given in the notice of appeal, he may not by any subsequent document, save for a supplemental notice of appeal[8] filed and served within time or with the leave of the court, add to his grounds of appeal in an undisciplined manner as he pleases.  Anyway, the matters outside of the Grounds that the applicant has sought to raise by his said “Reasons for Appeal” and written submissions are too lacking in specificity for this court to act on.  We will therefore confine our consideration of this appeal to the Grounds.

22.  On this note, we turn to Ground 1. As summarised in [6], [9]-[11] above, the NRF Claim failed on the facts and evidence at both tiers of the screening process. In particular, the Board found there would be no risk of harm to the applicant upon his return to Bangladesh, in any event not any emanating from the AL due to his political affiliation with the BNP.  The applicant’s bare assertion under Ground 1 that he “will face hardship if he is to return back to his home country” goes against such findings by the Board. The question whether the applicant would be at risk if he is returned to Bangladesh is a question of fact within the province of the Board (after the Director): see [19] above. The Board heard the applicant. It provided detailed reasons in [38]-[77] of its decision, explaining why it did not accept the applicant’s testimony of the circumstances giving rise to a risk of harm to him at the hands of the AL or its supporters. It can be seen from [12]-[13] above that the applicant has not, by the proposed grounds for judicial review raised before the Judge, articulated any errors of law, procedural unfairness or irrationality on the part of the Board in coming to such adverse findings against him. Nor has he done so before this court.  Ground 1 is devoid of merit.

23.  Ground 2 targets the Board. As explained in [20] above, in hearing an appeal against a refusal of leave for judicial review of the Board’s decision, what the Court of Appeal examines is the judge’s denial of leave for judicial review, and not the Board’s dismissal of the appeal against the Director’s rejection of the non-refoulement claim. Apart from the said various bare assertions made in the “Reasons for Appeal” upon which this court cannot act, the applicant has not, in his notice of appeal or written submissions before us, stated in any meaningful way how the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in not granting leave for judicial review of the Board’s Decision. Nor can we discern any.

24.  Even insofar as the Board’s Decision is concerned, Ground 2 has not particularised the alleged unrecognised or hearsay source of news, outdated cases or incredible source of information that the Board is said to have referred to or relied on. Nor has he alluded to any particular part of the Board’s Decision that is allegedly speculative or groundless as a result of the Board having acted on such news, cases or information. Ground 2 is likewise unmeritorious.

Disposition

25.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.