RE YOUNUS alias MOHAMMAND RAZIB alias RAZIB alias YUNUS

CACV 411/2018

[2018] HKCA 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 411 OF 2018

(ON APPEAL FROM HCAL 275/2017)

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J U D G M E N T

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Hon L Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 13 August 2018 in HCAL 275/2018 refusing leave to the Applicant to apply for judicial review against the decision of the Torture Claims Appeal Board dated 15 February 2018 (“the Board” and “the Board’s decision”).

Background

2.  The Applicant is a national of Bangladesh.  He entered Hong Kong in March 2005 and was arrested in September 2008 for overstaying.  He raised a torture claim in October 2008.

3.  The Applicant claimed that he would be killed by his neighbour, Abdur Rob (“Abdur”) because of a land dispute. The details of the Applicant’s claim have been summarized by the Judge at [1] to [18] of the CALL-1 Form.

4.  In gist, Abdur was the Applicant’s neighbour.  The Applicant knew Abdur for years.  Abdur appeared to be a member of the Bangladesh Nationalist Party (“BNP”). 

5.  The Applicant’s family had a piece of land.  Abdur claimed in 2002 with a land deed that he had certain right to part of that land.  The village elders, however, adjudged that the land belonged to the Applicant’s family.  But Abdur did not listen to the elders.  He occupied the land with his family members by force in early 2003. The Applicant and his father reported the matter to the police, but the police ignored their complaint.

6.  Abdur and his associates attacked the Applicant’s family on three occasions.  The Applicant was injured twice.  Abdur also threatened to kill the Applicant and his family.  He further threatened the Applicant not to seek police assistance.  Even though the Applicant’s nephew Salam was killed in the third attack in January 2003, the Applicant did not report the matter to the police.  He believed that the police would not do anything against Abdur because Abdur was a powerful BNP member.

7.  After the third attack, the Applicant moved to live in Dholaipar.  In 2004, he moved to Kadamtoli and stayed there for several months before returning to Dholaipar. Abdur had come with his men to look for the Applicant in the two places.

8.  The Applicant left Bangladesh for China sometime in 2004.  He then entered Hong Kong from China as a visitor in the name Younus.  He stayed here for 2 odd months and was arrested by the police on 4 November 2004 for overstaying.  He was repatriated to Bangladesh on 4 December 2004.  He stayed in different places in Bangladesh to avoid Abdur.

9.  On 25 February 2005, he left Bangladesh for Hong Kong in the name of Razib.  He did not stay in Hong Kong but went to mainland China by ferry.  He came to Hong Kong on 3 March 2005 but returned to the mainland two days later.  A few days later, he came to Hong Kong and overstayed.  He was arrested by the police on 4 September 2008.  He raised a torture claim on 7 October 2008.[1]

10.  The Director of Immigration (“the Director”) refused the Applicant’s torture claim on 15 March 2013.  The Applicant appealed to the Board on 28 March 2013 against the Director’s decision on this claim.

11.  Before the Board made the decision on the appeal, the Applicant made another claim based on (i) risk of persecution[2] and (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk or CIDTP risk)[3] on 31 May 2013 (“the second claim”).

12.  The Board refused the Applicant’s appeal from the Director’s refusal of the torture claim on 3 June 2013.  The Applicant did not take this claim further and it was thus concluded.

13.  The Applicant alleged in the second claim that Abdur had been looking for him in Bangladesh and threatened to kill him because of the land dispute.  He further claimed that Abdur had injured his wife in Bangladesh badly in late 2015.  Despite the Awami League (“AL”) was then in power, BNP was still influential in Bangladesh.  One of Abdur’s uncles was an AL minister.  The Bangladesh police would only help influential people and those having connections with them.

14.  The Director refused the Applicant’s second claim on 24 August 2016.  The Applicant appealed to the Board against the Director’s decision of this claim on 5 September 2016 (“the second appeal”).

15.  Before the Board made the decision on the second appeal, the Director invited the Applicant to submit additional facts for consideration of the risk of violation of his right to life (BOR2 risk)[4] on 7 July 2017.  The Applicant did not submit any additional facts.  The Director decided against him on the BOR2 risk on 25 July 2017.

The Board’s decision

16.  The Board refused on 15 February 2018 his second appeal on the grounds of (i) the persecution risk and (ii) BOR3 risk as well as (iii) the BOR2 risk.  The Board in the decision on the second appeal found the Applicant to be an incredible witness. His statements were extremely brief and contained very little detail.  His account was vague and evasive.  He did not make a claim for international protection in 2004 when he was repatriated to Bangladesh.  He also did not raise his torture claim when he entered Hong Kong in March 2005 but only did so when he was arrested over three years later in September 2008.

17.  Even though the land dispute was central to his case, the Board found him unable to provide consistent and coherent evidence about it which damaged his credibility.

18.  The Board did not accept that he faced any real risk that warranted non-refoulement protection.

Decision of the Judge

19.  The Applicant filed on 22 February 2018 a Form 86 with supporting affirmation seeking leave for judicial review of the Director’s decisions dated 24 August 2016 and 25 July 2017 and the Board’s decision dated 15 February 2018. 

20.  The Applicant set out his grounds of appeal in his supporting affirmation.  His grounds are that the Director and the Board had failed to clarify the issues during oral hearing; failed to attain high standards of fairness; failed to properly consider state protection and state acquiescence; failed to consider his claim with respect to BOR3 risk; failed to conduct sufficient enquiry and critical analysis of country of origin information (“COI”); failed to explain why they preferred certain COI to rule against him; cherry-picked COI; failed to consider his psychological harm as a result of what happened to him; took into account irrelevant consideration like his ability to leave Bangladesh and possibility of his relocation in Bangladesh.

21.  He also said that the Board had not probed enough into his case.  It was insufficient for the Board to merely highlight certain “inconsistencies and exaggerations” in paras 24-38 of its decision without probing further so as to afford him a sufficient opportunity to clarify the same.

22.  He further complained that the Director had failed to assess the additional information he had submitted in his Supplementary Claim Form dated 23 February 2016.

23.  The Judge conducted a hearing of the application on 11 June 2018.  The Applicant appeared in person and a Bengali interpreter was arranged to be there to provide him with interpretation service. 

24.  The Judge dismissed the application on 13 August 2018.  The Judge, after summarizing the background of the case and the decisions of the Director and the Board in the CALL-1 Form, gave the following reasons at [35] – [47] for his refusal to grant leave: 

“Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5]

37. The Applicant accused the Director and the [Board] failed to consider his claim with respect to BOR3 risk. That was not true. Both the Director and the [Board] had considered the Applicant’s claim with respect to BOR3 risk.

38. The Applicant also complained the Director failed to assess the additional information he had submitted in his Supplementary Claim Form (“SCF”) dated 23 February 2016.

39. The Director had not ignored the additional information. The immigration officer on behalf of the Director stated he had taken, among other things, the Applicant’s SCF into consideration.[6] He mentioned the information in details.[7] The officer only need to take the information into consideration of the Applicant’s claim as a whole. He did not have to analyse the information sentence by sentence or paragraph by paragraph.

40. The Applicant complained the [Board] had not probed enough into his case. He said it was not sufficient for the [Board] to merely highlight certain “inconsistencies and exaggerations” in paras 24-38 of his decision.

41. In my judgment, the [Board] had expressed [itself] clearly in those paragraphs of [its] decision. [It] had proper basis for [its] findings, which were not Wednesbury unreasonable.

42. There are other complaints by the Applicant against the Director and the [Board]. I have reviewed the Director’s decision plus further decision and the [Board]’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the [Board] had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the [Board], who had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the [Board] respectively showed they were acquainted with the facts and they applied the law correctly. The Director and the [Board] considered the Applicant’s case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable.

43. The Applicant’s torture claim had been previously refused by the Director and the Board in 2013. There being no change in the Applicant’s claim, the Director and the Board need not and should not consider the torture risk issue again.

44. The Director rightly considered the Applicant’s non-refoulement claim with respect to the other three applicable grounds only: persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). The Director had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

45. The [Board] was so aware and took the same course.[8] ...

46. … The [Board] still had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

47. The Applicant’s complaints are not reasonably arguable either against the Director or the Board.  He has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant him leave for the review.”

Grounds of Appeal

25.  The Applicant filed a Notice of Appeal to appeal against the decision of the Judge. He stated in his Notice of Appeal the following grounds:-

25.1.	The Judge failed to take into account that the Applicant and/or his family members were beaten and threaten by his enemies, causing the Applicant psychological strain;
25.2.	The Judge failed to conduct sufficient COI enquiry;
25.3.	The Judge took into account irrelevant considerations, such as finding adversely of the Applicant’s manner of departure from Bangladesh, or that the Applicant lodged his torture claim very late.  The Applicant argued that he was not aware of the system;
25.4.	The Judge failed to consider extended state acquiescence.

Skeleton Submissions

26.  The Applicant filed his skeleton submissions on 23 November 2018.  The contents of which are essentially the same as his Notice of Appeal with some repetition of facts that have already been dealt with by the Director and/or the Board.  His complaints are against the Board and Director that they had failed in their duties and in particular to consider his fear that he and his family had been attacked several times, his enemy could reach him anywhere to harm him, his BOR2 risk or give proper explanation on his BOR 3 or CIDTP risk.

General principles

27.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals 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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board (Nupur Mst v Director of Immigration [2018] HKCA 524 at §14).

(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 were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

(3) 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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court; Cap 4A.

Discussion

28.  The Applicant alleges in the first ground of appeal that the Judge failed to take into account his psychological strain caused by the beating inflicted on and threats uttered to the Applicant and/or his family members by his enemies.  This issue of psychological strain was not raised before the Board or Judge.  Thus, it cannot be said to be an error of the Judge.  This ground therefore fails.

29.  The second ground says that there was a failure to conduct sufficient COI.  However, assessment of evidence and COI materials is primarily within the province of the Board and the Director and not for the Judge.  The Board found that nothing he had said to the Board could be given any credence.  He was not a witness of truth and his account was entirely unreliable.  Save the fact that he is a national of Bangladesh, the Board disbelieved all the facts that he asserted[9]. We cannot see any error of law, procedural unfairness or irrationality in this decision of the Board.  The second ground of appeal also fails.

30.  The third ground alleges that irrelevant considerations have been taken into account.  Examples are the adverse finding of the Applicant’s manner of departure from Bangladesh and the very late lodging of the torture claim by the Applicant.  The Applicant argued that he was not aware of the system.  However, these matters were only dealt with by the Board and not by the Judge.  The Board took these matters into consideration in considering his credibility.  We cannot see any error of law, procedural unfairness or irrationality in this.  The third ground therefore also fails.

31.  The fourth ground alleges that there was a failure to consider the concept of extended state acquiescence.  This again is not a valid ground of appeal as the Applicant never reported his problems with Abdur to the police or any other authority. There is nothing to suggest state acquiescence. 

32.  Regarding the Applicant’s skeleton submissions, he stated in [1] that this was an appeal against the decision of the Judge.  However, from [3] to [5], he directed his arguments only against the Board and Director.  He did not identify any error in the Judge’s decision.  These submissions are repetitions of what he raised before the Judge and in the grounds of appeal and are not viable grounds of appeal[10].

Decision

33.  In our view, the Applicant has not shown any viable ground to reverse the decision of the Judge. Accordingly, the appeal is dismissed.

34.  We would also point out that, as held in Re Moshsin Ali [2018] HKCA 549 at [31] to [45], the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant.  This is because the Director’s decision is superseded by the Board’s decision.  Accordingly, it is not open to the applicant to challenge the Director’s two decisions by way of judicial review.