RE KHAN MD AL AMIN

CACV 18/2020

[2020] HKCA 692

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 18 OF 2020

(ON APPEAL FROM HCAL NO 1555 OF 2018)

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

I.   INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 3 January 2020 dismissing the applicant’s application for leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 19 July 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 27 December 2017 rejecting his non-refoulement claim.

II.  BACKGROUND

2.  The applicant is a national of Bangladesh.  He claimed to have entered Hong Kong illegally on 7 August 2015.  He surrendered to the Immigration Department on 10 August 2015, and was released on recognizance on 17 September 2015.  The applicant purported to make a non-refoulement claim by way of written representation on 25 September 2015, but was not accepted by the Immigration Department.  On 10 March 2016, he made another non-refoulement claim by way of written submission.  The applicant was arrested by the police for an offence on 10 March 2017, convicted on 21 April 2017, sentenced to imprisonment, and was discharged on 18 May 2017.  A removal order was made against him on 13 June 2017, and he was released on recognizance on 25 June 2017.  On 6 November 2017, the applicant submitted his non-refoulement claim form dated 3 November 2017.

3.  The applicant’s claim was based on his fear that, if refouled, he would be harmed or killed by members of the Bangladesh Awami League (“BAL”) because of his membership of and his political opinion in support of the Bangladesh Nationalist Party (“BNP”).  

4.  The applicant attended an interview with an Immigration Officer on 15 November 2017.  By a notice of decision dated 27 December 2017, the Director rejected the applicant’s application for non-refoulement protection having regard to the BOR 3 risk [1], the persecution risk [2], the torture risk [3], and the BOR 2 risk [4].

5.  The applicant lodged an appeal to the Board against the Director’s decision.  An oral hearing was held on 16 May 2018. Upon consideration of the applicant’s oral evidence, his written claims and the materials placed before it, the Board dismissed the applicant’s appeal/ petition having regard to all 4 applicable grounds on 19 July 2018.

6.  The applicant claimed that when he was studying college in 2011, he declined to join the BAL when their members approached him, and instead he joined the BNP as a committee member with responsibility to attend party meetings/rallies and to recruit young people for the party.  He claimed he took instructions from Babul Islam, the BNP president of the Chhatra Dal Madhabpur police station area which fell under Shatian union. [5]  The applicant referred to 5 particular incidents:

(1)  At a BNP party meeting in early 2011, 150 BAL members appeared and attacked the BNP supporters (including the applicant) with sticks and hockey sticks.  The applicant suffered serious injury to his back and wrist for which he received hospital treatment.  The applicant stayed with his aunt in Habinganj for 15 days to avoid the BAL before returning home. [6]  The Madhabpur police station did not actively investigate the incident despite report made.

(2)  The BNP held a meeting 3-4 months later, and the attendees (including the applicant) were attacked by 100 people carrying hockey sticks (who were believed to be from the BAL).  The applicant suffered injury to his right middle finger which took a week to recover after hospital treatment.  He hid at his sister’s house in a different village for 8 days.  But despite report of the attack, the police only said they would talk to the BAL. [7]

(3)  About 2 months after the 2^nd incident (ie at the end of 2011), a few BAL members approached the applicant to demand that he join their party, and when he refused they verbally abused him and threatened to kill him before leaving. [8]

(4)  Not long thereafter, some BAL members went to the applicant’s home 3 times to look for him.  He was not at home on 2 occasions. On the third occasion, they demanded him to change his support to the BAL, and when he refused they threatened to kill him before they left. [9]

(5)  2 days later, 4-5 BAL members came up to the applicant asking him to follow them, and when he did follow them, they started to punch and kick him but ran away when he screamed and some passer-bys came to his aid.  The applicant suffered bruises which took 10-12 days to recover, but he did not report to the police as he thought it would be a waste of time given their previous reactions. [10]

7.  The applicant considered he would not get state protection given the reactions of the police and as the BNP was in opposition in Bangladesh.  He believed his life would be in danger if refouled and relocation in Bangladesh was not a viable option as the BAL was well-connected and would easily find him.  He thought the situation in Bangladesh was “horrifying” with the BNP members subjected to extortion, false cases, forced disappearances and murder.  He claimed the BAL cadre and the police would go to his home to search for him, and they left death threats. [11]

8.  But the Board found the applicant’s evidence at the oral hearing deficient in relation to knowledge of the BNP.  He could not give detailed information about the Chhatra Dal (student wing of the BNP) of which he claimed to be a member, and his evidence on this (eg the different branches of the Chhatra Dal [12], the organisation status of the Chhatra Dal and Jubo Dal [13], the process to become a member of the Chhatra Dal [14], how he came to be picked for committee member of the Chhatra Dal in his village and his role as such [15], the persons from whom he took instructions [16], his Chhatra Dal activities [17], his motivations to join the Chhatra Dal [18], and his knowledge of major events affecting the BNP in the 2 years before his departure from Bangladesh [19]) was vague, confused and inconsistent with his Non-refoulement Claims Form. [20]

9.  The Board found the applicant’s evidence “full of significant discrepancies and inconsistencies in relation to past events”, eg the dates of past key events [21], the circumstances of the 3^rd and 5^th incidents [22], when, in what context and why the BAL members wanted him to join their party [23], the visits by the BAL’s members to his home [24], what happened between the last alleged attack on him in 2013 (according to his oral evidence) and his departure from Bangladesh in 2015 [25], the alleged events after his departure from Bangladesh [26], and his new claims as to contact with and threats made to him in Hong Kong by the members of the BAL[27].

10.  The Board concluded that notwithstanding the applicant’s indicated nervousness, the passage of time and some genuine lapses of memory, he was not a credible witness, [28] and the Board did not accept (a) the applicant joined the BNP, the Chhattra Dal or any Chhatra Dal committee in his village, (b) he engaged in activities for and on behalf of the BNP or the Chhatra Dal as alleged, (c) he was ever approached by members of the BAL to join their party, (d) he was ever threatened or harmed for refusing to join the BAL or for his support/membership of the BNP, (e) the 1^st to 5^th incidents described in his Non-refoulement Claims Form or oral evidence ever occurred, (f) the members of the BAL or the police came looking for him at any time including after he left Bangladesh, (g) the police threatened to kill him, and (h) the members of the BAL called and threatened him when he was in Hong Kong. [29]  The Board concluded there was no real risk that the applicant, if refouled, would face any of the proscribed forms of harm from the members of the BAL or the police due to his support of the BNP or the Chhatra Dal, or due to his refusal to join the BAL. [30]

III.   THE JUDGE’S DECISION

11.  The applicant filed his Form 86 on 6 August 2018 in HCAL1555/2018 to apply for leave to judicially review the Board’s decision. The grounds for judicial review against the Board’s decision were summarised by the Judge at [18] of the Form CALL-1 ([2020] HKCFI 71) as follows:

“(1) the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2) the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3) he was confused at the appeal hearing;

(4) the Adjudicator was unfair and had not given greater care to a self-represented claimant;

(5) the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6) the Adjudicator had applied the incorrect standard of proof;

(7) the Adjudicator had considered irrelevant facts or had failed to [consider] facts which were in favour of his case;

(8) the Adjudicator had not done sufficient research in the Country of Origin Information (‘COI’) and her knowledge was not updated;

(9) the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(10) the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favourable to his case;

(11) the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) ‘Report on the ICJ Mission to Bangladesh’ Autumn 2011, which is favourable to his case;

(12) the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(13) the Adjudicator was wrong in state protection in his country;

(14) BOR 2 risk was assessed without screening;

(15) the Adjudicator failed to call for psychological and psychiatric reports on the applicant;

(16) the applicant was not legally represented before the Board, which was in breach of procedural fairness; and

(17) the Adjudicator failed to obtain the requisite documents to properly adjudicate his case.”

12.  The factual background has been succinctly set out at [11] of the Form CALL-1.  The Judge dismissed the applicant’s application for leave to apply for judicial review against the Board’s decision, and gave the following reasons for refusing leave as set out in [22]-[33] of the Form CALL-1:

“22. In fact, he had asked this Court to adjourn the hearing for four months because he was not feeling well and he could not remember things well. There was no medical evidence to support his complaint. I refused his application and continued with the hearing, which took about 20 minutes. The hearing went on quite smoothly. He was able to answer my questions.

23. It is obvious that the Board had concluded that the factual basis of the case did not support his claim.

24. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant does not have the absolute right of free legal representation at every stage of the proceedings. He had already had free legal representation at the screening stage before the Immigration office, which is very important stage for fact finding. The Board also relied upon such findings to assess his appeal. He cannot complain that he did not have legal representation at the appeal stage or for this application.

25. The applicant has the burden to raise substantive grounds for his application, with particulars and explanation as to why he considers those grounds support his application. See Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29, and Rasaratnam v Canada (Minister of Employment and Immigration) [1992] 1 FC 706; Thirunavukkarasu v Canada (Minister of Employment and Immigration) [1994] 1 FC 589. [31] TK v Jenkins & Another [2013] 1 HKC 526, C.A. at §25.

26. This fundamental burden applies at every stage of the proceedings though the court has the duty of applying the enhanced standards of fairness in the assessment of his case. A general statement or comment without identifying the facts or issues, telling this Court in what respect such facts or issues would cause prejudice to his appeal before the Board is simply not sufficient.

27. I shall deal with his grounds in his affirmation.

28. He has confirmed that his lawyer had explained the Director’s Decision to him and he had no problem with the Hearing Bundle for the appeal as his friend had explained it to him. His friend had also explained the Board’s Decision to him.

29. The fact that the Director decided not to have another screening for BOR 2 risk is simply not true. According to the Director’s Decision, BOR 2 risk was assessed in the same screening together with other risks.

30. All other grounds do not sustain as they are either opinions or he has no reasons to complain.

31. As to the grounds in his affirmation in support of this application, they are either repetitive of the grounds above or they are grounds not relevant to the reasons on which the Board refused his appeal.

32. The applicant fails to show that he has any reasonable chance of success in his proposed judicial review.

CONCLUSION

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

IV.  THE APPEAL

13.  On 13 January 2020, the applicant filed a Notice of Appeal against the Judge’s decision.  In the notice, the applicant stated that:

“…. the plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible sources of information has resulted in them making groundless speculations.”

14.  In his written submissions lodged on 6 July 2020, the applicant submitted that:

(1)  the Judge failed to apply the principle of irrationality to the Director’s decision and the Board’s decision;

(2)  the Judge failed to apply the principle of procedural fairness to the Director’s decision “whereby the [Director] and the [Board] was required to give reasons justifying their decision”;

(3)  the decision, which had the effect of finally disposing of the applicant’s torture claim and making him liable to be removed, had real and significant implications for his substantive right to non-refoulement protection and not to be subjected to torture, especially when life and limb were in jeopardy, so “high standards of fairness” were required in the determination by the decision-maker, but the Judge reviewed the matter lightly;

(4)  the applicant submitted all proofs as to his torture claim despite severe problems in his home country, but the Judge did not take “greater care”;

(5)  the Judge had not properly analysed the applicant’s claims in respect of his home country when the Board significantly relied on source of news that was hearsay or not officially recognised, and had not considered the fact he would face hardship if refouled;

(6)  the Judge failed to “received the applicant’s claims” that had been refused by the Director and the Board;

(7)  the Judge failed to give sufficient opportunity for the applicant to arrange evidence in support of his non-refoulement claim and his appeal;

(8)  the Judge’s refusal of the applicant’s appeal was unreasonable.

In his written submissions, the applicant also asked for time to submit new documents from Bangladesh related to and in support of his claim.

15.  We heard the appeal on 10 August 2020.  The applicant asked for more time to obtain further documents and evidence from Bangladesh, such as the hospital records of his medical treatment received after the attacks on him by members of the BAL, and the complaints he lodged in respect of the attacks on him.  He claimed that he was unaware of the need for further documents and evidence until he was told by the Judge that the proofs he submitted were insufficient, and that the current public health condition in his home country made it difficult for him to secure such further documents and evidence.

V.   GENERAL PRINCIPLES

16.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for 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 scrutinising 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 country of origin information (“the 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 or procedural unfairness or irrationality in the decision of the Board.

(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 before, and rejected, by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an applicant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements of Ladd v Marshall ([1954] 1 WLR 1489).  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  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 this Court to examine the decision of the Board afresh as if it was a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53 rule 4(1) of the Rules of the High Court Cap 4A.

VI.   DISCUSSION

17.  In his written submissions, the applicant criticised the decision of the Director in addition to the decision of the Board.  But the applicant in his Form 86 did not apply to judicially review the decision of the Director.  In any event, since the applicant had appealed to the Board, the Director’s decision was not susceptible to judicial review (see Re Moshsin Ali [2018] HKCA 549).

18.  In our view, nothing in the Notice of Appeal or in the applicant’s written submissions constitute valid ground to reverse the Judge’s decision.

19.  In the present case, the Board rejected the applicant’s non-refoulement claim based on its adverse findings on his credibility.  As explained above, the assessment of evidence is within the province of the Board.  The Court will not intervene with such findings unless they contained errors on public law grounds.  Having considered the case and materials with anxious scrutiny, the Judge did not find any reasonably arguable basis to challenge the findings of the Board.  There is no merit to the complaint in paragraph 14(1) and (3) above.

20.  The complaint in paragraph 14(2) above has no merits.  It was clear from the Judge’s decision that he had provided adequate reasons for his conclusion.  There was no basis to say the Judge failed to give reasons.

21.  In respect of the complaint in paragraph 14(4) above, the Board rejected the applicant’s claim based on its assessment as to the reliability of his evidence and the allegation as to risk of harm, and on its findings as to internal relocation.  As explained above, these findings were within the province of the Board, which the Court would not interfere unless they were reversible on public law grounds.  In this appeal, the applicant did not put forward any viable basis to reverse the Judge’s decision, and we find no reasonably arguable basis to challenge the findings on these matters.

22.  In respect of the applicant’s complaints in his Notice of Appeal and in his written submissions on the COI materials (see paragraphs 13 and 14(5) above), the Board had regard to the COI from various sources, and also took into account other COI discussed with the applicant at the oral hearing before the Board and referred to in the Board’s decision. [31]  But given the adverse findings by the Board in respect of the applicant’s credibility as to the alleged incidents and his association with the BNP and/or the Chhatra Dal set out in paragraphs 8-10 above, the Board’s conclusion that the applicant would not face real risk of harm or hardship if refouled was not reversible on public law grounds.

23.  In respect of the applicant’s complaint that the Judge failed to give sufficient opportunity for him to arrange further evidence (see paragraph 14(7) above), and his request for more time to submit new documents from Bangladesh (see paragraph 14 above), the Board noted that at his interview by the Immigration Officer on 15 November 2017, he had been given 2 weeks to submit any documentation to the Immigration Department, but he failed to do so.  The applicant also failed to provide any documentation to the Board prior to or during the oral hearing on 16 May 2018, and he did not refer to any documents he was seeking to obtain.  On such basis, the Board did not consider it appropriate to postpone the making of its decision to allow the applicant further time to obtain any documentation. [32]

24.  At the hearing before the Judge, the applicant was unable to specifically identify what documents he would like to get from Bangladesh.  When the Judge put the Board’s findings to the applicant and asked him how the documents he would like to get from Bangladesh would explain the inconsistencies and contradictions found by the Board, the applicant was unable to give an answer. [33] Although the applicant alluded to hospital records and complaints made that he might obtain from Bangladesh, these were not new matters, and he already had time and opportunity since late 2017 to secure such documents if he could.

25.  We discern no error on the part of the Judge in not allowing further time for the applicant to obtain further documents. Time had previously been given to him for such purpose, and the existence and cogency of any possible document had not been identified.

26.  The remaining complaints in the written submissions, including paragraph 14(1), (6) and (8) above, were general assertions without particulars in support.  As this Court had said previously, general assertions or propositions of law cannot assist an applicant when he fails to condescend to the requisite particulars related to the facts of his case (see Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327). In any event, these grounds were nothing more than an invitation by the applicant to the Court to reassess his non-refoulement claim afresh as if it were the primary decision-maker.  As explained, this is not a permissible course on appeal.

27.  In this appeal, the applicant has failed to persuade us there is any viable ground for reversing the decision of the Judge. We agree with the Judge there is no reasonable prospect of success in the intended judicial review, and leave to apply for such must be refused.

28.  We dismiss the appeal accordingly.