RAHMAN MOHAMMAD HAFIZUR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 549/2018

[2019] HKCA 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 549 OF 2018

(ON APPEAL FROM HCAL 158 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 Rahman Mohammad Hafizur (“the appellant”) from an order of DHCJ Josiah Lam (“the judge”) given on 29 October 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 25 January 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. 

2.2.   The appellant entered Hong Kong illegally by boat on 28 May 2013 and was arrested by the police on 12 June 2013.  He lodged a torture claim on 20 August 2013 which was rejected by the Director on 24 October 2013.  There was no appeal.  He then filed a claim for non-refoulement on 31 October 2013.  His claim was rejected by the Director on 28 July 2017. 

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 was born in 1992.  He supported the Chhatra Shibir (“CS”), the student wing of Jamaat-e-Islami (“JI”), which was in alliance with the Bangladesh Nationalist Party. The Awami League (“AL”) was the ruling party.

-   In 2009, he was selected by MD Athaur Rahman (“MAR”), whom he alleged was the President or alternatively, the Secretary of the CS, to be its Campaign Secretary, responsible for promoting Islam and inviting other students to join the CS.

-   In early 2012, MAR was arrested by the police while attending a rally.

-   The appellant alleged that he was successful in inviting many students to join the CS and therefore, members from the Bangladesh Chhatra League (“CL”), the student wing of AL were jealous and asked him to join CL.  He refused. 

-   In May 2012, while a group of CS members including the appellant was protesting against the CL in front of his college, they were attacked by a group of CL members (on one version of his story, together with the police) with weapons, and the applicant suffered bruising.

-   The appellant moved to Chhoto Bohula and Muriyauk and then went back home in about June 2012, when he was told by his family that the situation was under control.

-   In early 2013, JI was banned.  The appellant alleged various things happened to his friends, some allegedly arrested, and some allegedly killed (although he sometimes confused what happened to some with what happened to others).

-   The appellant claimed that he was targeted by the AL as he had refused to join them. He said he feared that he would be arrested and tortured by the police, and people from the AL as well as the CL, so he moved to stay with his friend in Dhaka.

-   The appellant applied for and obtained a passport and left Dhaka on 17 May 2013 for the PRC without encountering any problem during his departure, and entered Hong Kong illegally on 28 May 2013.

-   The appellant was informed by his family members that the leaders and members of the AL and CL are still looking for him, and one of his neighbours, a member of JI, was beaten up by AL members.

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 first claimed that he was at risk of torture.  His claim was rejected by the Director.  There was no appeal.  He then claimed non-refoulement under BOR3, BOR 2 and the persecution risk.  He was given legal assistance to prepare his claim for an interview with the Director’s representative.  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 28 July 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, and “persecution risk”, “torture risk” having been dealt with as mentioned (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing on 27 October 2017 at which the appellant was present.  At the hearing, the appellant was assisted by a Bengali interpreter and he confirmed to the TCAB that he had no difficulties with the quality of interpretation.  The appellant also confirmed to the TCAB that he had no further documents that he wished to submit.  The TCAB considered all the papers and his oral evidence, and assessed the appellant’s claim for non-refoulement on all the risks except the torture risk. 

7.2.   The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision dated 25 January 2018 (“the TCAB’s Decision”).  Essentially, TCAB found that the appellant gave inconsistent evidence as to the year when he allegedly joined the CS; he had no knowledge of which division of the CS he belonged to; he said at first he did not hold any office but then said he was Publicity Secretary; he had no idea of the principles of the CS, the names of its leaders, or why it was banned; he could not give an account of what he did to recruit members that he said he was so successful at doing, such as to cause jealousy among the CL; he gave inconsistent evidence as to whether the police had taken part in the alleged attack on CS members in front of his college; and he gave inconsistent evidence of what had allegedly happened to his friends.

7.3.   The TCAB found that the appellant was not a credible witness and had fabricated claims in relation to his membership of the CS.  The TCAB did not accept that the appellant had been threatened or attacked.

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, with the adjudicator of the TCAB and the Director named as the respondent and interested party respectively.  However, since the TCAB’s Decision had been attached, the judge correctly took the application as being one against that Decision as well.  The appellant alleged procedural impropriety or unfairness, and irrationality, as discussed in the Judge’s Decision set out below.

The Judge’s Decision

9.1.   The appellant appeared at the hearing before the judge and he was assisted by a Bengali interpreter. 

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

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

37. 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’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.”.

38. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director had screened the Applicant's claim with respect to torture risk in 2013. In his further decision dated 28 July 2017, the Director considered the remaining three applicable grounds including BOR2 risk.

39. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 28 July 2017. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

40. The Applicant complained there were a lack of and/or insufficient legal representation. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

41. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

42. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

43. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.

44. The Director stated in his letter dated 29 June 2018 that the appeal bundle was served on the Applicant on 20 October 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. Thus, the bundle was served on the Applicant in time.

45. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

46. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

47. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

48. The Adjudicator had not considered the issues of state protection and state acquiescence. She did not have to as she had found the Applicant failed to establish any real persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity to call psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

49. There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

50. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had 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 Adjudicator was acquainted with the facts of the Applicant's case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 12 November 2018, the appellant appealed the judge’s order to this court.  The grounds of appeal were: (1) the judge was wrong in law in holding that there was no state acquiescence or involvement; and (2) the judge failed to provide detailed reason in support of his decision.

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 (“Country of Origin Information”, or “COI”).  

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 25 February 2019.  He submitted 2 additional grounds: firstly, “high standards of fairness” are required in determination of a torture claim on the part of the decision-maker; and alternatively, (i) the TCAB’s approach was wrong by simply trying to find fault in the Director’s Decisions since his appeal should be a rehearing before the TCAB; and (ii) the TCAB failed to consider the COI.  Secondly, there are minimum standards of procedural fairness required in the decision-making process.  The appellant did not provide any particulars in respect of how the judge may have erred in law or in the exercise of his discretion.   

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.   First, in relation to the grounds of appeal, the judge did not have to deal with state acquiescence when the TCAB had found on the facts that the appellant’s evidence was not credible.  Second, the judge had indeed provided detailed reasons in support of his decision. 

13.2.   As for the further grounds in the skeleton, even assuming that one can take them into account, first, it is clear from the TCAB’s detailed Decision that the Board was not simply checking the Director’s Decision for any faults, but had embarked on its independent fact-finding exercise.  Second, as indicated above, COI was irrelevant when his story was not even credible.    

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.