LAL MIAH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 440/2019

[2020] HKCA 364

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 440 OF 2019

(ON APPEAL FROM HCAL NO 1926 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. Lal Miah (“the appellant”) from an order of DHCJ K.W. Lung (“the Judge”) given on 16 September 2019 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 “CALL-1” (“the Judge’s Decision”)[1].

1.2.  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decisions made by the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“TCAB”) 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 (defined in [7.2] below) was an appeal against the decision of the Director who had earlier rejected that claim.  

Background

2.1.  The appellant is a national of the Bangladesh now aged 40.  The appellant worked as a farmer from 1997 to 2002 in his home village.  He then operated his own business in manufacturing and retailing from 2002 to 2015 in Mymensingh and Dhaka.  He became a member of Chatra Dal, the student wing of Bangladesh Nationalist Party (“BNP”) in or about 1992.  In or about 2007, he became a member of Jubo Dal, the youth wing of BNP.  In the middle of 2008, he was elected as the President of Jubo Dal. 

2.2.  As a result of certain alleged incidents, on 12 July 2015, he sneaked into Hong Kong by boat and surrendered to the Immigration Department on 14 July 2015.  On 1 November 2016, he was arrested by the police for illegal employment and was sentenced to prison on 17 March 2017.  He raised his claim for non-refoulement by way of written representation dated 24 November 2015.  Subsequently, he submitted his non-refoulement claim form dated 1 December 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 (defined in [7.2] below) and in gist in the Judge’s Decision.  Put briefly, what he alleged was that:

-  The appellant was responsible for organizing meetings of the BNP and attending meetings with other leaders of the BNP. 

-  In the end of 2008, the Awami League (“AL”) won the general election and became the ruling party.  The day after the election, the appellant together with others went to the market at his home village where they met about 200 AL members.   They were attacked by the AL members with cleavers and stones.  The appellant was slightly injured but managed to escape.  Later, he was threatened by some senior AL members that he should stop his business otherwise they would chop off his limbs.  His workshop was vandalized by those AL members.  His father was also beaten up by AL members when he inspected the workshop for the appellant. 

-  The appellant had reported the incidents to the Gafargaon Police Station, but the police did not record his complaint. 

-  Around the end of 2008, the appellant moved to live in Baluka with his wife and children in order to avoid the AL members.  He also moved his business to Dhaka.  However, he began to receive threatening phone calls from the AL members demanding money from him and threatening to kill him. 

-  One day in late 2014, he together with a big group of BNP members who had attended a BNP meeting were attacked by more than 1,000 AL members who used a petrol bomb and other weapons.  The appellant was shot by an AL member.  After the police arrived, the appellant and other BNP members were sent to the Gafargaon Hospital. He was declined treatment unless he made a report to the police.  He went to the Gafargaon Police Station to report the attack but the police refused to accept his report.  He then went to a private clinic in Baluka and he took about 20 to 25 days to recover.

-  After the appellant left his country, he was told by his mother, his friend and his wife that AL people still visited his home to search for him from time to time and they also threatened to kill the appellant and his family members if he returned to Bangladesh.  His business was ruined and his house in Baluka was damaged by AL members.  The appellant considered that it would be impossible for him to seek state protection and he was unable to relocate within Bangladesh as he would be located by the AL which had a strong network throughout the country. 

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks if he returned to the Bangladesh: “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 Cap.383) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 20 December 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.

The TCAB’s Decision

7.1.  The appellant appealed to the TCAB which held a hearing at which the appellant was present and he had the assistance of an interpreter. 

7.2.  The TCAB reviewed the evidence of the appellant in detail.  The TCAB attempted to ask questions to clarify various issues with the appellant at the hearing, but he claimed that he was mentally unwell and chose not to answer. As those issues remain unresolved, the TCAB was not able to be satisfied regarding the credibility of the appellant’s claims ([32]-[35]).  Upon assessing the evidence, the TCAB did not consider the appellant faced a real risk of harm from the AL members or the Bangladesh authorities if he was refouled to his country ([36]).  The TCAB dismissed the appeal by its decision given on 3 September 2018 (“the TCAB’s Decision”).

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 decisions of the Director and the TCAB. The appellant set out his grounds in his affirmation in support which was summarized by the Judge in the Judge’s Decision as follows ([11]):

“a. the Director’s Decision and the Board’s Decision are unfair and unreasonable;

b. the Director failed to give sufficient weight to his argument; and

c. the Director failed to attain high standard of fairness.”

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge with assistance from an interpreter.  As mentioned earlier, the Judge refused leave for the reasons set out in [12] - [18] of the Form CALL-1 ([2019] HKCFI 2217):

“The Director’s Decision

12.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

13.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

14.  The applicant appeared before me. He confirmed that he refused to give evidence before the Board and he had no complaint against either the Immigration officer or the Adjudicator. He considered that he had had a fair hearing before the Board.

15.  It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

16.  All of his grounds above are his opinions without any evidence in support of them. They do not sustain. He had chosen not to cooperate with the Adjudicator. He has no ground to complain.

17.  The applicant fails to show that he has a reasonable prospect of success in his proposed judicial review.

CONCLUSION

18.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 23 September 2019, the appellant appealed the Judge’s order to this court.  He stated the following in his Notice of Appeal:

“On 16.09.2019 the Honourable Judge of the High Court dismissed my J.R. total Call 1. He failed to show any real cause to [dismiss] my judicial review, but I had many good complain against the Adjudicator and Director [of] Immigration. Honourable Judge not consider that causes and did not give any comments. He just [ignored] all, so I wish to appeal to the Court of Appeal for justice.” (sic)

Legal Principles

11.  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 Immigration[2]and 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 wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are 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 21 January 2020 submitting that he is not safe in his country.  He also complained that he did not have sufficient legal and language assistance so he was unable to raise the problems in respect of the decisions made by the Director and the TCAB to the Judge.  These had not been raised before the Judge.      

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 grounds of appeal are unparticularized, vague and bare assertions. His arguments do not support his grounds of appeal.  He did not make out his complaint about the Judge’s failure to consider his case.  In any event, the Judge had provided reasons in detail in the Judge’s Decision for refusing the appellant’s leave application for the intended judicial review. 

13.2.  The TCAB wanted to clarify certain issues but the appellant declined to participate.  He was entitled to adopt that stand but he had been cautioned by the TCAB that if he failed to clarify the issues, they would remain unresolved.  The issues were legitimate ones [34] and the Judge was entitled to agree with the TCAB that without clarification, the appellant had failed to make out his claim. 

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.