AHMED MOHAMMAD SUJON v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 247/2018

[2018] HKCA 826

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 247 OF 2018

(ON APPEAL FROM HCAL NO. 1025 OF 2017)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1)  The appeal

1.1   This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (‘the Judge’) given on 8 June 2018 refusing leave to apply for judicial review. 

1.2   The date for this Court to hear this application is 20 November 2018 at 9:30 a.m. According to the directions given by the Registrar of Civil Appeal and contained in the letter from the High Court to the applicant dated 23 July 2018, the time for lodging his skeleton argument was extended to 23 October 2018.  If he failed to do the same by that time, he would be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper.  The applicant failed to file any written submission and accordingly we will deal with this application on paper.

2)  Background

2.1   The applicant is a national of Bangladesh who allegedly entered into Hong Kong on 19 June 2014.  He was arrested by the police on the same day.  On 22 June 2014, the applicant lodged a non‑refoulement claim.  The basis of his claim was that if he were to return to Bangladesh, he would be killed or harmed by members of rival political party Awami League and that he would be wrongfully persecuted by the police for false charges of extortion, robbery and assaults.  

2.2   The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1231.  We shall not repeat the same here.

3)  The Director’s Decision and the Director’s Further    Decision________________________________________

3.   The Director decided against the applicant’s non‑refoulement claim on 20 May 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (Torture or Inhuman Treatment) risk, persecution risk and torture risk.  By a Further Decision of 25 July 2017, the Director also assessed BOR Article 2 (Right to life) risk and decided against them.

4)   The Board’s Decision

4.  The applicant appealed to the Torture Claims Appeal Board (‘the Board’) against the Director’s first decision.  After a hearing held on 6 September 2017, the Board dismissed the appeal on 24 November 2017.

5)  DHCJ Bruno Chan’s decision

5.1   The intended judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed by the applicant on 7 December 2017 did not contain any grounds for judicial review.  These were instead deposed to in the applicant’s affirmation filed on the same day, in which he set out five grounds for judicial review which were summarised by the Judge as follows :

(1)   failure on the part of the Director and the Board to conduct sufficient enquiry into the relevant Country of Origin, Information (‘COI’); 

(2)   irrationality/erroneous misdirection in law by both the Director and the Board for taking into account of irrelevant consideration or failing to take into account of relevant consideration of his claim including the intensity and frequency of the attacks on him, the psychological impact of the threats and assaults and the false claims against him, and failing to recognize the situation in Bangladesh where members of opposite parties are being persecuted by the ruling party;

(3)   procedural impropriety on the part of both the Director and the Board for failing to consider the concept of state acquiescence of the threats against him;

(4)   errors/misdirection in law for failing to consider the psychological harm to him due to the threats from the AL members and supporters; and

(5)   failure on the part of the Board to provide him with sufficient time to obtain supporting documents for his claim. 

5.2   The hearing for the application for leave to apply for judicial review was fixed for 16 April 2018 and the applicant was absent for the hearing.  After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge rejected the application on its merits giving his reasons at [11] to [17] of the CALL-1 Form in which he addressed all of the grounds put forward by the applicant :

‘ 11. For his ground (1) about failure to conduct sufficient inquiry into COI, in the absence of any particulars or specifics from the applicant and having examined those COI listed and referred to in the decisions of both the Director and the Board, and given the fact that applicant’s claim was rejected by the Board essentially on his credibility, I do not find any merits in this complaint of the applicant.

12.   As for his ground (2), again the applicant did not provide any particulars or specifics as to what irrelevant consideration had been taken or what relevant consideration that had not been taken by either the Director or the Board.  Given the detailed analysis and reasoning of their findings as set out in their decisions, and as noted of the Board’s findings as to his credibility, I do not see any basis for the applicant’s complaint in this ground. 

13.   Regarding ground (3), again given the Board’s findings against the applicant on credibility, and in the absence of any reliable evidence implicating the government of Bangladesh or the police in the alleged threats from AL in any way even if true, I fail to see why it was necessary to consider specifically the concept of state acquiescence in this case, and that in any event from the COI referred to and considered by the Director in paragraphs 18 – 22 of his decision and later also by the Board, I am satisfied that they did take into proper consideration of that issue, and hence there is no justification in the applicant’s complaint under this ground.  

14.   Similarly for ground (4) in respect of any possible psychological harm to the applicant, as noted above under ground (2), all aspects of possible mental and physical harms to him arising from his asserted threats have been properly considered by both the Director and the Board, and I do not find any merit in this ground of the applicant.

15.   As for his ground (5) of not being given sufficient time to provide supporting documents for his claim, I note in paragraphs 47 – 50 of the Board’s decision of the discussions between the applicant and the adjudicator which took place at his oral hearing before the Board about production of further documents in support of his claim, such as proof of his membership in BNP which he claimed were in Bangladesh but which he could obtain including a letter from BNP if given time but rejected by the Board.  That was then in September 2017, but even now at his leave application before me, the applicant still did not produce any further documents in support of his claim.  I therefore do not see any merit in this complaint of the applicant either.

16.   In the premises and having considered 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.’

6)  Grounds of Appeal

6.1   The applicant filed the Notice of Appeal on 20 June 2018 and he set out two grounds of appeal in his affirmation as follow :

‘ (1) The Honourable Deputy High Court Judge Bruno Chan was wrong in law in holding that there was no state acquiescence or involvement.

  (2)   The Honourable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of his decision.’

6.2   In the applicant’s supporting affirmation, he exhibited a 17-page statement which is a compilation of the applicant’s personal background and quotations of various international covenants, the Bill of Rights and Basic Law. He also set out in this document his grounds of challenge to the Board’s decision.  This 17‑page document which was not placed before the Judge is more relevant for the purpose of a judicial review rather than this appeal.  In any event his grounds for judicial review were set out in his Form 86 which were summarised by the Judge and considered by him.  We shall therefore focus on the two grounds of appeal against the Judge’s decision now relied upon by the applicant.

6.3   As for ground 1, the Judge had already considered this point in paragraph 13 of his reasons set out in the CALL‑1 Form.  We agree with his view. 

6.4   Ground 2 is a bare allegation without substance.  There is no basis for suggesting that the Judge   did not give adequate reasons.  The Judge’s finding is set out in paragraphs 11 to 17 of the CALL-1 Form which, in our view, is sufficiently clear to explain his decision and findings. 

7)  Disposition

7.   There is no prospect of success in the intended application for judicial review and the appeal is dismissed accordingly.