RE MD ASHAD HOSSAIN

CACV 539/2020

[2021] HKCA 650

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 539 OF 2020

(ON APPEAL FROM HCAL 1761 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr MD Ashad Hossain, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 27 May 2020 (“Judge’s Decision”) refusing him an extension of time for an application for leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 20 December 2017 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 12 August 2016 and a notice of further decision dated 6 June 2017 (“Director’s 1^st Decision” and “Director’s 2^nd Decision” respectively and “Director’s Decisions” collectively).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 50, is a fear of being harmed or even killed by (1) members/supporters of the Bangladesh Nationalist Party (“BNP”), a rival political party, as the applicant was an official of the Awami League (“AL”) and/or (2) the Rapid Action Battalion (“RAB”), an elite anti-crime and anti-terrorism unit of the Bangladeshi police.

3.  The circumstances giving rise to such fear have been set out in detail in paragraph 7 of the Director’s 1^st Decision and in gist in paragraphs 8 to 13 of the Board’s Decision and [4] to [6] of the Form CALL-1 dated 27 May 2020, [2020] HKCFI 941 (“Form CALL-1”).  Briefly:

(1)  The applicant came from a family with along history of support for the AL. 

(2)  In around 1996, the same year in which the AL won the election and formed the government, the applicant himself was elected as the general secretary of the local voluntary league of the AL, with duty to gather supporters in the 10 odd villages of the area.

(3)  The applicant’s problems began shortly after he became popular within the party in the area.

(4)  Members of the BNP approached the applicant to join the BNP.  He would often find them waiting for him on his way home.  They were persistent and this continued for a number of years, though they never threatened him.

(5)  Then, in 2002, the landlord of the premises from which the applicant ran a confectionary shop told the applicant that he was under pressure to bring an end to his lease.  The applicant was therefore forced out of his confectionary business. He thereafter started a car rental business.

(6)  In 2005 to 2006, there were 6 to 7 occasions on which the applicant was chased by a group of BNP people armed with sticks.

(7)  The applicant began to receive verbal threats in September 2006 from 3 senior BNP members who had been asking him to join the BNP for a long time.  On one occasion in September 2006, around 7 persons including the said 3 senior BNP members attacked the applicant with wooden sticks.  His left arm was struck but he did not need medical treatment.

(8)  In December 2006, the applicant was informed by other AL members that the same 3 senior BNP members who had beaten him had filed 3 false criminal complaints against him and that the matter had been referred to the RAB.  Upon hearing of the RAB’s involvement, the applicant became very scared.  He fled to and stayed in Majhakandi for about 10 days after the police went to his house and threatened his parents.

(9)  On 22 December 2006, the applicant left Bangladesh.  He landed first in mainland China.

(10)  After his arrival in Hong Kong, the applicant’s wife[1] told him that a few uniformed RAB officers had gone to his house to look for him 2 to 3 times.

Illegal entry into Hong Kong and lodgment of NRF Claim

4.  The applicant entered Hong Kong illegally on 26 December 2006.  He was arrested by the police on 30 December 2007.  

5.  He lodged written representation dated 8 January 2008 to raise a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”).  The Torture Claim had not been completely processed by the commencement of the unified screening mechanism (“USM”) on 3 March 2014 and was taken to be a non-refoulement claim to be dealt under the USM. 

6.  The applicant further submitted a Non-Refoulement Claim Form dated 26 May 2014.  In processing the NRF Claim, the Director’s representatives interviewed the applicant on 13 June 2016.  The applicant then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decisions

7.  The Director’s 1^st Decision covered torture risk[2], persecution risk[3] and “BOR 3” risk[4].  The Director found the NRF Claim unsubstantiated under these grounds.

(1)  First, the absence or low intensity and frequency of past ill-treatment from the BNP or the RAB/police is indicative of a low future risk upon the applicant’s return to Bangladesh.

(2)  Second, the availability of state protection would further lower or even negate the level of risk (if any).  There is objective country of origin information (COI) showing that reforms have been and are on-going in Bangladesh with indication of positive results in recent years.  There are also alternative avenues for seeking justice in Bangladesh.

(3)  Third, reasonable internal relocation alternatives are available.

8.  Following the Director’s 1^st Decision, by a letter dated 17 May 2017, the applicant was invited to submit additional relevant facts on or before 31 May 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground.  The applicant did not respond to such invitation.  In the absence of additional information, by the Director’s 2^nd Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[5].

Appeal to Board and Board’s Decision

9.  The applicant appealed to the Board after the Director’s 1^st Decision on 22 August 2016.

10.  The Board conducted a rehearing of the NRF Claim on 12 October 2017 at which the applicant, with the assistance of a Bengali interpreter, testified before and answered questions by the Board.

11.  The Board’s Decision covered all 4 applicable grounds[6] for non-refoulement protection.

12.  After considering the applicant’s evidence and hearing him at the hearing, the Board reached the conclusion that “no credence whatsoever can be attached to any of [the applicant’s] statements”.  “His account was so vague, despite repeated questioning and so inconsistent with his previous claim on material points, including the introduction of an entirely new basis of claim never previously mentioned[7]” (footnote added).

Application for leave for judicial review and Judge’s Decision

13.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 1761/2018 on 25 July 2018 (which was out of time), supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds that:

(1)  He was not educated.

(2)  No lawyer was provided to advise him.

(3)  The Board decided the case on assumption, without considering the “true and serious” evidence presented to it.

(4)  The Board cannot infer that he had no case.

14.  After hearing the application in open court at which the applicant was present and was assisted by an interpreter, the Judge refused to extend time for the applicant to apply for leave to apply for judicial review.  His reasons can be found in [14] to [20] of the Form CALL-1:

“14. The applicant’s application is late – the Board Decision is 20 December 2017 and his application is 28 August 2018. There is a delay of about five months. The applicant requires leave from this Court to extend time for him to proceed: Re Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419, 23 July 2018, §28. The Court has to consider whether he has merits in his intended judicial review: AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015.

15. The applicant appeared before me and he confirmed that he was treated fairly when he appeared before the immigration officer and the Adjudicator of the Board. The duty lawyer had explained the Director’s Decisions to him. The interpreter of the Board had explained the Board’s Decision to him.

16. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

17. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision (sic) and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

18. The applicant’s grounds in support of his application are not sustainable as they are either not supported by the authority or they are his opinions without any evidence or particulars in support of them.

19. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

20.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.”

Appeal to Court of Appeal - grounds of appeal and submission

15.  By a notice of appeal filed herein on 5 October 2020, the applicant appealed against the Judge’s Decision on the grounds that he would face hardship if he should return to India (“Ground 1”); and that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay new and outdated cases (“Ground 2”).

16.  On 7 October 2020, the applicant lodged written submission, by which he referred to ST v Director of Immigration (sic)[8] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531 and R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

17.  The applicant appeared in person at the hearing of the appeal on 3 May 2021.  He was provided with a Bengali interpreter.  He had nothing to add to his notice of appeal or written submission.

Court of First Instance’s role in judicial review in non-refoulement claim

18.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

19.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[9]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)] and [14(4)].

Discussion

20.  As summarised in [7], [8] and [12] above, the NRF Claim failed on the facts at both stages of the USM.  The questions whether the applicant would be at risk of life or torture if he is refouled to Bangladesh and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director).  The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him.  Indeed, the much-repeated bare assertion under Ground 1 that he would face hardship if he should return to Bangladesh is inconsistent with the findings of both the Director and the Board.

21.  As for Ground 2, the applicant has not identified what unofficial or hearsay news or outdated cases that the Board had improperly relied on and in what respects the Board had made “groundless speculations”.

22.  Turning to the applicant’s written submission, there was no attempt by the applicant to elaborate on whether and, if so, how the legal principles he cited had not been honoured in the processing of the NRF Claim.

23.  In short, the applicant did not in the Form 86 or the accompanying affirmation point to any error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision, apart from being late, was hopeless and rightly dismissed.  Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s Decision. Accordingly, we dismiss the appeal.