HOSSAIN IKRAM S.M. v. TORTURE CLAIMS APPEAL BOARD

CACV 302/2018

[2018] HKCA 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 302 OF 2018

(ON APPEAL FROM HCAL 567 OF 2017)

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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 Hossain Ikram SM (“the appellant”) from an order of DHCJ Woodcock (“the judge”) given on 3 July 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 18 August 2017 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 decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of Bangladesh born in 1985.  He and his partner Ripon Fakir (“Ripon”) had a shop in a market selling garment accessories.  He entered Hong Kong on 23 July 2007 as a visitor and was permitted to remain for 7 days.  He overstayed his visitor’s permit.  He was arrested by Customs and Excise on 8 October 2008 for offences related to the Dutiable Commodities Ordinance.  After his arrest, he lodged a claim on 18 November 2008 that he should not be refouled. 

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:

-   on 12 May 2006, when he and Ripon were travelling to another market, they were abducted by men who demanded 250,000 takas each from their families; they were released later even though the abductors said their families had only paid 300,000 takas; he did not report the matter to the police because the abductors had warned them not to do so;

-   two weeks later, he and Ripon were approached by two men who demanded the balance of payment;

-   on 16 August 2006, he and Ripon were intending to purchase goods in a unit on the 3^rd floor of a building, when 10 men approached and demanded they leave with them.  One of them said he was a follower of Amanullah Aman who is a member of parliament of the BNP party, and Baba Anowar (“Baba”) was his big brother; he and Ripon were taken to a unit on the 6^th floor where Baba questioned them. One of the men tried to take a bag from Ripon which contained 1 million takas. When Ripon resisted, he was assaulted.  The appellant escaped and stayed at a friend’s place; although he said he had been injured, he did not seek medical treatment but only applied some medicines from a pharmacy;

-   2 days later, he, his friend and Ripon’s cousin went to a police station but the police refused to take down his complaint;

-   on 19 August 2006, Ripon’s corpse was found; he and Ripon’s cousin went to another police station and told the police that Baba and his men were responsible for Ripon’s death, but the police said they would not be able to take up the case because it involved a minister;

-   he remained at home for another week, in the course of which Baba’s men made threatening phone calls demanding he met with them, or else they would find him and kill him;

-   the appellant then left his home and relocated in 6 other places during the next year;

-   after he left home, his father said Baba’s men were seen in places near his home and shop;

-   on 3 June 2007 the appellant went to India for 3 days, he says to save his life, but found that as he had no relatives there, he found it difficult to survive;

-   he returned to Bangladesh from 6 June 2007 to 23 July 2007, and then came to Hong Kong.  

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “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 Director’s representative had an interview with 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.  The Director rejected the appellant’s claim for reasons set out in a decision given on 1 June 2015 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 6 June 2017 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing at which the appellant was present.

7.2.   After assessing his claim, the TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the Board found that his claim was not genuine.  There was an 11 month period between August 2006 when Ripon was killed and July 2007 when the appellant left Bangladesh, when no harm was done to him.  Clearly whatever influence Baba and his men had, it did not extend to the other locations where the appellant stayed (his family has since moved).  He left for India in June 2007, he said because of fear for his life, but if that were the case, he would not have returned after only 3 days.  The reason he gave of not having relatives there was rejected because he would have known that before he left.  Further he made no attempts to find work there.  When he came to Hong Kong, he did not make a non-refoulement claim promptly.  Whatever threat Baba posed, it was in the nature of a private act which did not fall within the scope of persecution risks.

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 Director being named as an interested party.  The headings of the appellant’s grounds were:-

-   the Board had acted in a procedurally unfair manner;

-   the Board’s decision was irrational;

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

The appellant’s grounds which appeared in his affirmation can be summarised as follows:-

-   procedural impropriety/unfairness in that:-

-   the Board failed to carry out sufficient research into Country of Origin (“COI”) conditions;

-   the Board failed to call for psychological and psychiatric evaluations;

-   the Board applied the incorrect standard of proof;

-   there were (unparticularised) failures at first instance by the assigned lawyer;

-   he had language difficulties at the hearing;

-   irrationality in that:-

-   the Board failed to take into account updated COI research;

-   the Board failed to find whether there was in his COI a pattern of mass violations of human rights;

-   the Board failed to assess whether state protection exists in his COI;

-   the Board took into account (unparticularised) irrelevant considerations.

The Judge’s Decision

9.1.   The appellant appeared at the hearing before the Judge.  As mentioned earlier, the Judge refused leave for reasons set out in his Decision, in particular

“16. There are eight grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

17. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did consider COI despite his finding the applicant not credible. He considered information that was up-to-date, relevant and objective in determining State protection availability and the viability of internal relocation. These grounds are not arguable.

18. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint. There is no merit in this ground.

19. The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

20.   There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 6 June 2017 and the adjudicator rejected his appeal on 18 August 2017 with specific reference to that decision of the Director.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 9 July 2018 the appellant appealed the Judge’s order to this court.  The grounds of appeal were that the judge was wrong in law in holding there was no state acquiescence or involvement, and that she had failed to provide detailed reasons in support of her 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, she does not hear the claim afresh as if she 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 I 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.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

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 Board has made findings of fact which it was entitled to do on the evidence before it.  Taking the appellant’s allegations at face value, the Board was entitled to find that the threat posed by Baba was a criminal act done by a private person who had limited influence, as shown by the fact that for a lengthy period of time, the appellant was able to live peacefully in a number of locations within Bangladesh.      

13.2.   As the Board had dismissed the appellant’s case on the factual evidence, the judge was right to say that allegations regarding the COI were merely academic.  The appellant’s argument before the judge ignored the fact that the Board’s decision was predominantly based on its finding of fact that there was no real risk of the appellant suffering any of the 4 risks referred to earlier in this Judgment⁴.

13.3.   As the judge rightly pointed out, unparticularised assertions expressed in general terms do not advance an appeal. There was no reason given as to why the appellant needed psychological or psychiatric evaluations.  There was no indication as to where (in his view) the Board had applied an incorrect standard of proof.  As for his allegation against the lawyers who assisted him in the preparation of his claim, such lawyers in general provide a valuable service to claimants, and unparticularised allegations against them will not be accepted without proper substantiation. 

13.4.   Finally, as for the complaint regarding assistance with language, the judge was entitled to reject this argument on the basis that interpretation service was provided at the hearing before the Board.

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.