HOSSAIN MD DELOWAR v. TORTURE CLAIMS APPEAL BOARD

CACV 250/2018

[2018] HKCA 852

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 250 OF 2018

(ON APPEAL FROM HCAL 516 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 MD Delowar (“the appellant”) from an order of DHCJ Woodcock (“the judge”) given on 7 June 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” or “the Board”) given on 4 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 1957.  He had worked in Bangladesh as a factory worker.  He entered Hong Kong illegally from the mainland on 8 June 2014 and was arrested the same day.  After his arrest, in June 2014 he lodged a claim 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 that

-   in 2006, he became a member of the Bangladesh Nationalist Party (“BNP”), preparing the office for meetings and entertaining members and taking part in volunteer work;

-   in early 2008, 3 members of the Awami League (“AL”) demanded that he joined the AL, which he refused to do.  They then threatened to kill him; from then until mid-2008, they continued to demand that he join the AL; he did not report the matter to the police because he had underestimated the risks (“the 1^st incident”);

-   in June 2008, the 3 AL members (together with 10 others) cut his left leg with daggers; he went to a doctor for treatment, but he did not report the matter to the police as he believed the AL had established strong connections with government and police (“the 2^nd incident”);

-   from February to late 2009, the 3 AL members again demanded that he joined the AL on many occasions, threatening to harm or kill him (“the 3^rd incident”);

-   he spent 2 months staying with a friend in Chittagong, 7 hours away by train, then returned to his home town, but the AL people kept on threatening him twice a month;

-   in mid-2012, the 3 AL members came with 6 others and assaulted him, causing a dislocated shoulder; he did not report the matter to the police because he thought he would be exposed to more risks (“the 4^th incident”);

-   he spent 6 months staying with an acquaintance in Farid Pur, during which time the AL men went to his home frequently asking (unsuccessfully) for his whereabouts;

-   when he returned to his home town, he met the 3 AL people 5-6 times, during which they demanded he joined them or they would break both of his legs;

-   he then left Bangladesh in May 2014, went to the mainland and then entered Hong Kong illegally by boat.    

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 as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 17 February 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 24 March 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 found2 that on his own evidence, the appellant was not an influential member of the BNP, his job being only to clean the office and serve tea to visitors, which could have been done by anyone.  He could not say what advantages the AL would have in getting him to join.  Although he alleged he told senior party members about the threats to himself, they did nothing except advise him to stay away from the AL people.  He gave different versions of answers (eg as to when he joined the party, how often he worked at the party office, the length of recovery from his alleged injuries, and the length of his absence from work and the party office).  The Board found his evidence unreliable and his claim substantiated.

7.3.   Moreover, the appellant was not threatened during the time he spent outside his home town3, and it had not been shown that what the AL members did was acquiesced in by the state4.  The appellant had never sought protection from eg. the police5.  Relocation within Bangladesh was therefore a viable option6. 

Application for leave to start judicial review

8.1.   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 member of the Board was named as respondent and the Director was named as an interested party. 

8.2.   The appellant’s grounds were procedural impropriety/unfairness, irrationality (cherry-picking COI, failing to evaluate whether there was a consistent pattern of violations of human rights in Bangladesh, failing to evaluate whether state protection existed, putting weight on certain matters and failing to put weight on others), procedural impropriety in failing to call for psychological or psychiatric evaluations, procedural impropriety/unfairness in applying the incorrect standard of proof, and procedural impropriety/unfairness in that there were failures at first instance by the assigned duty lawyer resulting in insufficient legal representation.

8.3.   However the affirmation in support was lacking in particulars. 

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge.  As mentioned earlier, the Judge refused leave for reasons set out in her Decision, in particular she noted that the appellant had failed to give any particulars as to what the Board had allegedly failed to take into account, where the Board had applied the incorrect standard of proof, and what were the alleged failures of the duty lawyer7.  As for the COI allegation and state acquiescence grounds, the judge noted that in any event the Board did not need to consider these aspects because she (the member of the Board) had found the appellant’s evidence was not genuine8.  The judge also noted that the appellant had the service of an interpreter at the hearing before the Board and that he acknowledged that after the interpreter had explained the procedure to him, he was no longer confused9.

Appeal to Court of Appeal

10.1.   By a Notice of Appeal filed on 20 June 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;

(2) [The judge] failed to provide detailed reason in support of her decision”.

10.2.   The affirmation contained a regurgitation of the allegations he had made to the TCAB, with the addition that the Board had misdirected herself by taking into account that he had to have experienced torture in the past to establish substantial grounds to believe there would be a risk of torture in the future. However the Board in this case did not make such a direction at all. 

10.3.   The affirmation also contained a complaint that the Board’s decision dated 4 August 2017 was received by the appellant on 14 August 2017, but he did not say how this is relevant to his appeal.  There was in this case no issue of being out of time.   

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 Immigration¹⁰and 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 wrong¹¹.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall¹²are 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 directedby 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.   As noted earlier, the COI was not relevant in this case as the Board had, on good grounds shown, not believed the appellant’s story.  

13.2.   As for the complaint of lack of detailed reasons from the judge, that is clearly not made out when one reads the CALL-1 form which is summarized in §9.1 above.

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.