RE MD ANJUR ALI

CACV 330/2018

[2018] HKCA 808

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 330 OF 2018

(ON APPEAL FROM HCAL NO. 616 of 2017)

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JUDGMENT

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Hon L. Chan J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 17 July 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 1 September 2017. The Board in its decision dismissed the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 10 July 2014 and 5 May 2017 which rejected his non-refoulement claim. The applicant consented to the appeal being heard by a two-judge court.[1]

2.  The applicant is a Bangladeshi national.  He entered Hong Kong on 3 July 2006 and remained lawfully as a visitor until 17 July 2006.  He then overstayed illegally from 18 July 2006 onwards.  He had previously applied to the United Nations High Commissioner for Refugees’ Hong Kong Office for a refugee status but was rejected at the end of 2006.  He was detected and arrested by the police on 9 March 2008.  He lodged a claim with the Director on 22 March 2008 for non-refoulement protection.

3.  The basis of the applicant’s claim was that if he were refouled to Bangladesh, he would be harmed or killed by members of the Bangladesh Nationalist Party (“BNP”) for he had switched his allegiance to another party, Bikolopo Dhara Bangladesh (“BDB”). 

4.  The applicant’s background was set out in the decisions of the Director and the Board.  The material facts were summarized by the Judge in §§4 to 7 of the CALL-1 Form dated 17 July 2018.

5.  In gist, the applicant was a self-employed trader dealing in rice, wheat, lentils and peas.  He joined the BNP when he was about 20 in 1998.  He was a campaign secretary and was active in campaigning and motivating voters.  In about 2005, he noticed that members of the BNP would torture citizens who did not support their party.  He did not take part in such activities and lost favour from the party seniors.  He dropped out from BNP with other campaign secretaries who felt the same.  He and his fellow secretaries who had left BNP joined the opposition BDB party.  They went to an induction meeting on 8 June 2006.  When he was on the way home after the meeting, he was attacked by four or five BNP members of whom he recognized three.  They told him he deserved to die for switching political allegiance.  He was hit over the head with a hockey stick and his finger was cut with a smaller chopper.  He was saved by some neighbours who came out upon hearing his distress cry.  A doctor came to bandage his head and stitch his finger.  He hid in a friend’s house that evening.  Those BNP members came back to his house to find him and threatened to find him anywhere in Bangladesh and kill him.  He took a 5-hour bus journey to Dhaka the next day.  He believed that he would not be safe anywhere in Bangladesh.  He applied for a passport and eventually left Bangladesh in June 2006.

6.  The Director assessed the applicant’s claim on all applicable grounds under the Unified Screening Mechanism namely, the torture risk[2], the BOR 3 risk[3], the persecution risk[4] and the BOR 2 risk[5].  By a Notice of Decision dated 10 July 2014 and a Notice of Further Decision dated 5 May 2017, the Director rejected the applicant’s claim as being unsubstantiated.

7.  The applicant appealed to the Board against the Director’s decisions.  The Board conducted the appeal by way of re-hearing on 4 November 2014.  The applicant gave oral evidence with the help of an interpreter.  He also submitted further documentary evidence to the Board.

8.  By its decision dated 1 September 2017, the Board dismissed the appeal.  The Board’s reasons are in §§23 to 38.  On the basis of the applicant’s account of events and having regard to the Country of Origin Information, the Board found that (1) there was no substantial grounds for believing that there existed a real risk of torture or ill-treatment of the applicant that would reach a “minimum level of severity” so as to fall within the scope of torture risk and BOR 3 risk; (2) the disputes between the applicant and BNP did not involve any act, consent or acquiescence of the state or any person acting in an official capacity that could give rise to a violation of the right to life under the BOR 2 risk ground; and (3) the applicant was only attacked once and whilst the attack might have been on account of political opinion, there was no reasonable possibility of persecution risk from BNP given that 11 years had lapsed since the applicant had left Bangladesh.  In the premises, the Board concluded that the applicant had failed to make out a case for non-refoulement protection.

9.  The applicant filed his Form 86 on 13 September 2017 seeking leave to apply for judicial review of the decisions of the Director and the Board. An oral hearing was conducted on 7 March 2018 and the applicant appeared in person before the Judge because his legal aid application had been refused by the Director of Legal Aid.

10.  The Judge, having considered the applicant’s grounds for judicial review, refused to grant leave for the reasons encapsulated in §§14 to 22 of the CALL-1 Form dated 17 July 2018, [2018] HKCFI 1536 as follows:

“14. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and adjudicator’s decision to be without fault. They analysed material, claims and evidence carefully. The applicant’s grounds and complaints are not made out. I find no substance in the grounds of this application; they are not substantiated.

15. After a reading of the applicant’s affirmation, it would appear that the applicant has the following grounds against both the decision-makers. There are no particulars in his affirmation for any grounds.

16. The first ground is that there was a failure by the adjudicator to give the applicant an opportunity to clarify inconsistencies and exaggerations before making a finding against his credibility. There is no merit in this ground because the adjudicator did not make a finding against his credibility.

17. In the first ground the decision-makers are accused of failing to conduct sufficient enquiry into relevant COI. The Director is accused of failing to inform the applicant that COI would be considered during the assessment of his claim which is an odd submission considering the applicant had legal representation at the time. The Director is also accused of cherry picking COI but there are no particulars so I find no merit in this ground against either decision-maker.

18. In the third ground the decision-makers are said to have failed to consider the extended concept of State acquiescence. The applicant did not report the assault to the police or any authority in Bangladesh. This is not a case where the State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. There is no merit in this ground.

19. In the fourth ground the decision-makers are accused of unreasonableness in assessing his claim. In that paragraph he refers to being attacked twice and receiving serious injuries for which he was hospitalised. It is clear from both the decisions that there is reference to only one incident of assault and it did not result in hospitalisation. I do not believe both decision-makers have made a mistake in his evidence. He also makes reference to his persecution risk coming from his political views and membership with BDB. The adjudicator has dealt with the changes in Bangladesh that have happened over the 12 years since the applicant has left in the political landscape which have led him to conclude his fear is not well-founded. There is no merit in this ground.

20. In his oral hearing the applicant made additional submissions; he said his enemies are still looking for him and only six weeks ago he was told they went to his home and tortured his mother and brother. This being new evidence not put before either the adjudicator or the Director, I did not take this into account.

21. I do not find any ground that shows there was an error of law by the adjudicator or the Director. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

22.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

11.  The applicant lodged a notice of appeal on 23 July 2018.  The ground of appeal stated:  

“There is an appeal for the decision of legal aid and would like the case to be against will that is over.”

12.  We take the ground to mean:

“There is an appeal against the decision of legal aid and would like the case to be adjourned till that is over.” (emphasis supplied)

13.  On 23 Oct 2018, the Director of Legal Aid filed with the court a Memorandum of Notification of an Application for Legal Aid dated 19 October 2018 notifying that the applicant has applied for legal aid.  There is an automatic stay of proceedings for 42 days, but the court has discretion to lift the stay (s. 15, Legal Aid Ordinance; Cap. 91).  We note that the applicant filed his notice of appeal on 23 July 2018 and his application to fix a date for the hearing of the appeal on 9 August 2018.  But he only applied for legal aid on 19 October 2018.  He purported to explain at the hearing of the appeal that he did not know at what stage he should apply for legal aid and he did so upon the advice of a friend.  But he agreed that he had applied for legal aid on 13 September 2017 when he filed his Form 86 in the court below on the same day. It is thus not open to him to say that he was not aware of the legal aid scheme and the timing for making an application.  We do not accept his explanation. We are of the view that he has no reasonable excuse for not applying for legal aid at or before the time when he filed his Notice of Appeal on 23 July 2018.  The hearing of the appeal cannot be delayed by the applicant making a late application for legal aid.  We regard it appropriate to lift the 42-day stay and proceed to hear the appeal and we do so.

14.  In his written submissions lodged on 12 October 2018, the applicant reiterated the factual background and the basis of his claim.  He submitted, essentially, that he disagreed with the findings of facts made by the Board.  None of the matters submitted by the applicant points to any error in the Judge’s reasons and decision.

15.  This court has repeatedly emphasised that judicial review does not operate as a rehearing of the non-refoulement claim.  Evaluation of the claim and evidence and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The court in a judicial review exercises a supervisory role and its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Hence, providing this court with the account given to the Director and the Board in support of the applicant’s claim, without indicating its relevance to the appeal, does not serve to advance the applicant’s appeal.  

16.  The applicant made a further claim at the hearing before the Judge that his enemies were still looking for him and he was told some six weeks prior to that hearing that they had gone to his home and tortured his mother and brother.  This is not a matter that he could have made use of in the application for leave as it could not have been made known to the Board or Director.  It is only a matter that may or may not fall within the scope of s. 37ZO(2) of the Immigration Ordinance[6].

17.  We have considered the Board’s decision and we agree with the Judge’s observations that the applicant’s case is not reasonably arguable, there is no realistic prospect of success and leave to apply for judicial review should not be granted.  We cannot discern any mistake in the decision of the Judge that may warrant our interference.

18.  For the above reasons, we conclude that the appeal is devoid of merits and we dismiss it accordingly.