RE BELLAL HOSSAIN

CACV 448/2018

[2019] HKCA 220

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 448 OF 2018

(ON APPEAL FROM HCAL 994/2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) dated 31 August 2018, refusing to grant the applicant leave for judicial review.

Background

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1957.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Bangladesh.  He entered Hong Kong illegally on 11 April 2015 and was arrested by the police on 13 April 2015.  He was then referred to the Immigration Department for investigation.  On 2 May 2015, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by Russell, vice president of the Chhatra League (student wing of the Bangladesh Awami League (“AL”)) and other AL people as he was a supporter of Jamaat-e-Islam (“JeL”) when he studied in Comilla Victoria College.

4.  By a Notice of Decision dated 28 July 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

5.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”).  After the hearing on 9 November 2017, the Board dismissed the appeal on 24 November 2017.  The Board found at [53] to [59] of its decision that the applicant only made bare assertions with no objective proof and support and his account of events was inconsistent and contradictory that rendered him an incredible and unreliable witness.  Further, the applicant premised his case on urgent need to escape from Bangladesh, yet the evidence showed that he “idled” in China for one and a half years without ever seeking to lodge a non-refoulement claim.  After he came to Hong Kong, he only filed a non-refoulement claim after he had been arrested by the police.  The Board further found at [68] to [74] of its decision that there was no evidence suggesting state acquiescence or state involvement in the alleged ill-treatment suffered by the applicant.  The Board concluded that the applicant had failed to show any substantial grounds for believing that there would be a real risk to him under any of the applicable grounds if refouled to Bangladesh.

The Deputy Judge’s decision

6.  The intended application for judicial review was in respect of the Director’s and Board’s decisions.  The Form 86 filed on 1 December 2017 provided the following grounds:

(1)   the Director failed to appreciate or give proper regard to the presence of state acquiescence of the ill-treatment and torture inflicted by the local police on him and the state should be liable to him;

(2)   the Director failed to consider or give sufficient weight to relevant country of origin information (“COI”) which supported the applicant’s claim that the police in Bangladesh would not be able to offer protection to its citizens including the applicant;

(3)   the Director failed to properly consider the relevant COI as to the corruption and incompetency of the administration of Bangladesh;

(4)   the Director failed to apply high standard of fairness in assessing his claim; and

(5)   the Board failed to take into account the fact that the applicant was being detained in custody with limited means to gather evidence in support of his claim.

7.  On 31 August 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [12] – [19] for his refusal to grant leave:

“12. These are mostly just broad and vague assertions of the applicant without any particulars or specifics or elaboration as to how they applied to his case, or what relevant COI that the Director had failed to take into account in his consideration of his claim, or how was the presence of state acquiescence of his torture by the local police relevant to his claim when there is no evidence of any official involvement in the threats allegedly made against him, or in what way that the Director had failed to apply high standard of fairness in the consideration of his claim. None of these assertions were elaborated or presented with any particulars by the applicant.

13.   This was in fact also recognized by the applicant when he subsequently on 2 May 2018 filed a further supporting affirmation stating in paragraph 10 that ‘he had not stated grounds clearly’ and sought to withdraw his application but subsequently changed his mind after being explained by the Practice Master on the same date that it was not necessary to withdraw his application as long as he has clarified his grounds for seeking relief in his further affirmation, which can be summarized as follows:

(1)   that the hearing bundle for his appeal before the Board was given to him by the Immigration Department only six days before his appeal hearing, and with the majority of the documents in English and without the assistance of interpreter that there was insufficient time for him to prepare for his appeal;

(2)   that although he did answer all the questions with honesty, it was unfair that his credibility was found questionable; and

(3)   that the Board had significantly relied on the source of news which was not officially recognized or was simply hearsay or outdated resulting in its groundless speculations that it would be safe for him to return to his home country.

14.   That last ground put forward by the applicant is plainly and factually incorrect as the adjudicator having rejected his claim on all applicable grounds on credibility did not find it necessary to consider any COI in relation to his safe return to Bangladesh.  As for those COI which the Director did consider in his assessment, again the applicant failed to elaborate with any particulars or specifics as to which COI were unofficially recognized or irrelevant or outdated, and having considered them carefully I do not find any basis or merit in this complaint of the applicant.

15.   As for his complaint of being provided with the hearing bundle late before his appeal hearing with most of the documents in English without the assistance of any interpreter thereby giving him in sufficient time to prepare for his appeal, even assuming that it is true that the hearing bundle was indeed provided to him late, and I note that he did not produce any supporting evidence such as the date of the covering letter which accompanied the bundle, the fact is that most of those documents such as his NCF, his screening interview and the Director’s decisions had already been provided to him earlier when he still had legal representation, while his own NCF was clearly prepared with legal assistance on his own instruction, and that he was assisted by a proper interpreter at his appeal hearing during which he never raised any complaint or issue about the bundle, nor did he ask for further time or adjournment to enable him to better prepare for his appeal.  In the circumstances I do not find anything amiss arising from the hearing bundle being provided to him shortly before his appeal to the Board.

16.   As for his complaint about the Board’s findings against his credibility, having examined them as set out by the adjudicator in her detailed analysis and reasons in paragraphs 53 – 65 of the decision, I do not find any basis to interfere with her evaluation of the evidence available to her including hearing the applicant in evidence as the primary decision maker.  As has been repeatedly emphasized by the Court of Appeal, evaluation of risk of harm in a non-refoulement claim is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision maker in the absence of any legal error being identified by the applicant: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; and Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400.

17.   I should also note that after having adjourned the oral hearing of his leave application on two previous occasions when the applicant failed to attend but subsequently followed up with an explanation that his absence was due to medical reasons, and when he still failed to appear on the third occasion for which he submitted afterwards a letter in Bengali without translation but accompanied by a payment advice issued by the Hospital Authority on the same morning of the court hearing, I find it too much of a coincidence that on the morning of each of the three court hearings that he would have medical emergency and in the absence of any objective evidence that he has any chronic medical problems, I decided that no further oral hearing for his leave application would be justified and that it be dealt with on paper only without further delay.

18.   In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

The appeal

8.  The applicant filed the Notice of Appeal on 11 September 2018 in which he set out the following ground of appeal:

“ The plaintiff (applicant) 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 source of information has resulted in them making groundless speculations.”

9.  In the skeleton submissions lodged by the applicant on 4 January 2019, he set out some case law and legal principles in relation to non-refoulement protection claim in general but did not mention how they are related to his case or the ground of appeal.

10.  We heard the appeal on 21 February 2019.  The applicant repeated his belief that he would face hardship if refouled to Bangladesh, and requested that he be allowed to remain in Hong Kong.

Discussion

11.  In an appeal of this nature, the Court of Appeal focuses on examining the correctness of the Judge’s refusal of leave in the light of the grounds of appeal advanced by the applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA 583.  If no viable ground is put forward to reverse the Judge’s decision, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for leave to apply for judicial review.  We see no merit in the ground of appeal put forward by the applicant in this appeal as it does not identify any error in the Judge’s decision.

12.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Board, not for the court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  The applicant’s complaints in the ground of appeal had in fact been put before the Judge but was duly rejected.  We agree with the Judge’s finding at [12] of the CALL-1 form that these contentions were not elaborated or presented with any particulars by the applicant and is devoid of merit.  Accordingly, the Judge was entirely correct in refusing the applicant leave to apply for judicial review.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.