ABU SIDDIQUE v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 560/2018

[2019] HKCA 380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 560 OF 2018

(ON APPEAL FROM HCAL 276 OF 2018)

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J U D G M E N T

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

Introduction

1.1.   This is an appeal by Mr Abu Siddique (“the appellant”) from an order of Campbell-Moffat, J (“the judge”) given on 20 November 2018 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)¹. 

1.2.   The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 14 February 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.    

Background

2.1.   The appellant is a national of Bangladesh in his mid-50’s.  He used to operate a leather trading business.

2.2.   The appellant entered Hong Kong as a visitor on 11 September 2005 and overstayed.  He was arrested by the police on 5 April 2009.  He made a torture claim by way of written representation dated 9 April 2009 which was withdrawn on 3 November 2012.  Subsequently, the appellant filed a claim for non-refoulement on 10 April 2015 by written representation.  His claim was rejected by the Director on 8 August 2016 in respect of BOR3 risk, persecution risk and torture risk, and on 27 June 2017 by a Notice of Further Decision in respect of BOR2 risk. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was as follows:- 

-   The appellant became a member of the Awami League (“AL”) in 1996.  In 2001, the appellant was nominated as campaign secretary for a ward, and a man named Nabid was assistant campaign secretary. 

-   The appellant came to know a member of parliament and leader of AL called Haji Salim (“Salim”).  According to the appellant, Salim was notorious for carrying out criminal activities irrespective of which party was in power.  The appellant tried to avoid him.

-   In 2001, a Bangladesh Nationalist Party leader called Nasir Uddin Pintu (“NUP”) won an election.  In around December that year, Salim asked the appellant and Nabid to assassinate NUP. The appellant and Nabid were shown how to throw a bomb.

-   The appellant did not wish to carry out the assassination but he did not report the plot to the police.  He hid at the house of his sister in Mirpur, Dhaka for a week.  No assassination attempt was made against NUP. 

-   The appellant alleged that he was told by his wife that Salim’s people had appeared around his house, so he continued to hide at different locations in Dhaka city for a month. 

-   In mid-January 2002, the appellant phoned Nabid who informed him that the problem was solved.  The appellant then went back home.

-   One evening in around June or July 2002, when the appellant was collecting money from his clients at the tannery market, he was attacked by 4 people who robbed him of the money. Although he was blindfolded and could not see them, he said he heard Nabid’s voice.  He escaped to a friend’s house for assistance and received medical treatment.  He did not report the robbery to the police. 

-   The appellant then went to his cousin’s house 50 km away where he recuperated.  He was informed by his wife that a group of Salim’s people had told her that they would kidnap their son unless a sum of money was paid. However, the appellant and his wife did not report the matter to the police, no money was paid and no harm befell anyone in the family.

-   In around August or September 2002, the appellant went home.  He was told by his friend that Salim was looking for him so he changed his hiding places.  Nothing untoward happened for 2½ years.

-   On 21 February 2005, the appellant alleged he was chased by 7 to 8 of Salim’s people, but he escaped and stayed away from home.

-   The appellant decided to come to Hong Kong. He applied for a passport and left Bangladesh on 20 May 2005 after paying a bribe of USD100 to an immigration officer.  He arrived in Hong Kong in September 2005 as a visitor.

-   He was arrested by the police nearly 4 years later, on 5 April 2009.  He submitted a torture claim 4 days later which he withdrew 3 years later in 2012.  As mentioned earlier, he made another claim for non-refoulement in 2015.

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The appellant had made a claim twice, on 9 April 2009 and 10 April 2015 respectively, having withdrawn the first claim on 3 November 2012.  The Director’s representative interviewed the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim for non-refoulement as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 8 August 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision dated 27 June 2017 in respect of “BOR2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing on 22 January 2018 at which the appellant was present and was assisted by a Bengali interpreter.  The TCAB considered all the papers and the appellant’s oral evidence, and assessed the appellant’s claim for non-refoulement on all the risks. 

7.2.   The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision dated 14 February 2018 (“the TCAB’s Decision”).  Essentially, TCAB found that the appellant had failed to establish grounds for believing that he would be harmed.  The TCAB found the appellant’s credibility was doubtful. There was no evidence in support of the appellant’s allegation of the attack on him.  He did not report the robbery and attack to the police.  He did not have a medical report to corroborate how any injuries were sustained.  The Board might well have also noted that given the appellant’s own allegation that Salim was a “godfather” who was notorious for carrying out criminal activities whichever party was in power, that Nabid did not carry out the alleged assassination attempt either but did not suffer adverse consequences, and that Salim’s people went after the appellant for money (whether by way of the alleged robbery, or the alleged threat to kidnap his son for ransom money), Salim’s activities appeared to be simply of a common criminal nature, which is not a ground for a claim for non-refoulement.  The Board noted that there was no evidence of state acquiescence, considered internal relocation to be available and doubted whether any threat would remain after such a long period. The Board noted that the appellant left the country using a passport in his own name.  He did not explain why he paid the bribe to the immigration officer when he departed the country, nor did he suggest that the office had any connection with Salim.  Although he arrived in Hong Kong in September 2005, he did not raise a claim until after he was arrested by the police on 5 April 2009, nearly 4 years later.   

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision. The appellant did not set out any grounds in his notice of application and simply asked for a re-examination of the facts.

The Judge’s Decision

9.1.   Since the appellant did not request for a hearing before the judge, the matter was considered on the papers. 

9.2.   As mentioned earlier, the judge refused leave for reasons set out in her Decision, in particular

“Grounds of review

14.There were no grounds of review. The Applicant asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

15. Despite the fact that the Applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determinations, which were open to him on the facts and eminently reasonable.

16. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 28 November 2018, the appellant appealed the judge’s order to this court.  There was no ground of appeal and in the Notice of Appeal, he just stated that he was “unconvinced with the verdict.  Want civil tribunal”.

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration²and we will not repeat them here.  

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are satisfied.   Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions.  The appellant filed his skeleton submissions on 19 February 2019.  The appellant complained that the Hong Kong authorities have taken 15 years to decide against his case and he asked the rhetorical question why he would spend such a long period here if not for the fact that he would be harmed if he returned to his country. 

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1.   The appellant’s allegations had already been thoroughly examined by the TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

13.2.   The judge had considered the papers carefully even though the appellant did not submit any grounds of review.  Since there were no realistic prospects of success, the judge was correct to refuse leave for judicial review.

13.3.   Finally, general assertions of a blanket nature cannot be accepted as realistic grounds of appeal.

14.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.