MONIR HASAN v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 188/2019

[2019] HKCA 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 188 OF 2019

(ON APPEAL FROM HCAL 263 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.1.   This is an appeal by Mr Monir Hasan (“the appellant”) from an order of DHCJ Bruno Chan (“the judge”) given on 12 April 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 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 Appeal Board (“TCAB”) given on 30 January 2018 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 decision of the Director of Immigration (“the Director”) who had earlier rejected that claim. 

Background

2.  The appellant is a national of Bangladesh born on 2 March 1970 in the Bailabari Village of Muradnagar in Comilla District, Bangladesh.  He worked as a general worker in an industrial company in Malaysia from 1996 to 1999 and as a domestic helper in a furniture company in Malaysia from 2000 to 2001.  He entered Hong Kong illegally by boat on 11 February 2014 and surrendered to the Immigration Department on 4 March 2014.  He raised his non-refoulement claim by way of written representation dated 11 March 2014.  Subsequently, he lodged his non-refoulement claim form and supplementary information dated 18 September 2015 and 1 December 2016 respectively. 

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:

-   The appellant became a member of the Bangladesh Nationalist Party (“BNP”) in around 1987.  Later, he became the President of BNP of No. 22 Tonki Union, Ward No. 6 for 13 years.  The BNP stepped down from the government position in around October 2006 and the Awami League (“AL”) began to attack the BNP members, including the appellant, by filing false cases against him to the police.  The appellant fled to China in December 2006.  In around June 2008, his parents told him that his problem in Bangladesh had been solved.  The appellant returned to his country.

-   In July 2008, the appellant was chosen as the President of the same Ward No. 6.  On 29 December 2008, despite the BNP leader was elected as a Member of the Parliament, the BNP leader fled to Saudi Arabia because the government prosecuted the BNP leader.  In around June 2011, the AL people became aggressive against the appellant because he participated in the 2011 election and contested against the AL.

-   The appellant encountered 6 incidents inflicted on him by the AL people.  In the 1^st incident, a group of 3 to 4 AL people stole the appellant’s belongings from him on many occasions.  He did not report the alleged crimes to the police.  In the 2^nd incident, the AL people blocked the appellant’s tractor and asked for the impound fee of 50,000 taka. 

-   One day in 2012, the appellant was attacked by a group of 10 to 20 AL people.  The appellant suffered injuries but he did not go to the hospital as his injuries were not serious.  He spoke with his BNP leader about the 3^rd incident over the phone.  In around end of 2012, the appellant was beaten by a group of 12 to 13 AL people.  He suffered from bruises but he did not report the 4^th incident to the police as well as his leader.

-   In around early March 2013, the AL people went to the appellant’s home and tried to abduct him.  The appellant escaped from this 5^th incident and went to Chanla village as he believed that they would kill him.  In the 6^th incident, while the appellant was hiding in Chanla village, his family told him the AL people continued to search for him and they threatened his family members.  He was told by his cousin that the AL people knew that he lived in the Chanla village.  The AL leader of the Chanla village also questioned his brother-in-law for his whereabouts.  The appellant left the Chanla village for Sylhet and stayed with his cousin for a short while.  However, he learned from his cousin that the AL people continued to search for him.

-   The appellant went to Dhaka and decided to leave his country in October 2013.  The appellant alleged that many BNP members were killed after he left Bangladesh.  In June 2016, he was told by his family that the AL people had plotted a conspiracy by filing false cases against them.  The appellant claimed that the AL people continued to threaten his family for 2 to 3 times a week and still search for his whereabouts.

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 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 concluded that the appellant had failed to make out his claim.  The Director found that there was no evidence showing that he would be personally targeted by the AL, nor the Bangladeshi government, the authorities and the ruling party, AL, had any adverse interest in the appellant.  He did not suffer any serious harm from the AL people or encountered any problems from the police and the Bangladeshi government.  The Director rejected the appellant’s claim for reasons set out in a decision given on 26 January 2017 in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk”.  

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing and the appellant was present.  The appellant testified at the hearing.  The TCAB had assessed the evidence provided by the applicant.  The TCAB had significant concerns about the credibility and reliability of the appellant’s claims as his evidence was vague and lacked details.  During the course of his testimony, the TCAB found that he was evasive in his answers to the questions raised by TCAB about the principal events that contributed to his decision to flee his country. The TCAB also found that the applicant had failed to fully disclose his materials promptly and was unable to provide a satisfactory explanation for the delay.

7.2.   After examining his claim, the TCAB dismissed the appellant’s appeal for the reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found that the appellant’s claims were materially inconsistent and he was not a credible witness.  The TCAB was not persuaded that the material events claimed by the appellant and the conditions he described in Bangladesh were factually accurate.  The TCAB considered that the appellant had fabricated his claims in order to create a basis for his application of non-refoulement claim.  The appellant failed to establish that he has a well-founded fear of persecution.  He failed to show that he would face a genuine and substantial risk of torture, or being deprived of his inherent right to life.

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 appellant stated his grounds for leave of judicial review in his Notice of Application which are summarized as follows:

(1)   procedural unfairness in that the TCAB had unlawfully fettered its discretion by refusing the appellant’s appeal on the grounds that they did not satisfy the requirement;

(2)   procedural unfairness in that the adjudicator acted in a procedurally unfair manner in dealing with the appellant’s appeal;

(3)   procedural unfairness in that the TCAB’s Decision to refuse the appellant’s appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness;

(4)   procedural unfairness in that the TCAB failed to meet the greater care and duty owed to a self-represented claimant; and

(5)   lack of time for the appellant to prepare the appeal due to the late hearing bundle provided to him.

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 [12] – [17] of the Form CALL-1 ([2019] HKCFI 936).

“12. These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case, or how the Board or the adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion, or how did the adjudicator act in a procedurally unfair manner or that its decision was unreasonable or irrational in the public law sense, or which COI relied on by the Board that were not officially recognized or were outdated. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all being already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

15. The fact is that the applicant’s claim was rejected by the Board essentially on his credibility upon hearing and evaluating his evidence as detailed in its assessment of his claim in paragraphs 66 to 87 of its decision in which no legal error or procedural unfairness has been identified by the applicant, and as has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the Court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018[ HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

16. In the present case the applicant has failed to properly identified any legal error or procedural unfairness or irrationality in the Board’s decision, 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.

17. 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.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 18 April 2019, the appellant appealed the judge’s order to this court.  He stated the following in his Notice of Appeal:

“The [appellant] 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.”

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 (“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 Immigration^[2] and 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 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 13 June 2019 submitting that “high standards of fairness” are required for the judge to deal with his application for leave for judicial review of the appellant’s claim for non-refoulement.  

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 vague and bare assertions.  In any event, the main reason for TCAB to dismiss the appellant’s claim was because the TCAB found that the appellant was not a credible witness.  The TCAB considered that the appellant had fabricated his claims in order to create a basis for his application of non-refoulement claim.  He also did not set out why his claim should have a reasonable prospect of success.

13.2.   The appellant’s allegations had already been thoroughly examined by the TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did. 

13.3.   The arguments relating to COI ignore the fact that the TCAB’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 Judgment⁵.

13.4.   Finally, general assertions of a blanket nature with respect to the grounds stated in the appellant’s Notice of Appeal cannot be accepted as realistic grounds of appeal.

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.