HOSSAIN MD IQBAL v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 381/2018

[2018] HKCA 890

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 381 OF 2018

(ON APPEAL FROM HCAL NO 282 OF 2018)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam on 2 August 2018[1]. By his decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Torture Claims Appeal Board (“the Board”) and the Director of Immigration (“the Director”) concerning his non-refoulement protection claim.

2.  The appeal was scheduled to be heard on 12 December 2018.  Directions were given by the Registrar of Civil Appeals on 18 September 2018 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.  In such circumstances, the hearing date shall be vacated and the Court of Appeal shall proceed to consider the appeal on paper only without further notice.

3.  A notice of hearing of the appeal dated 24 October 2018 was issued and sent to the applicant by post.  In the notice, he was reminded that he should comply with the above directions of the Registrar.

4.  The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (i.e. on or before 14 November 2018).  The court sent him a letter dated 21 November 2018 informing him that the hearing date of 12 December 2018 has been vacated and his appeal will be dealt with on paper.

Factual background

5.  The applicant is a national of Bangladesh who entered Hong Kong illegally on 29 May 2014 and was arrested by the police on 30 May 2014.  He lodged a non-refoulement claim on 3 June 2014 on the basis that if he were to return to Bangladesh he would be harmed or killed by the bus workers from the rival political party Awami League (“AL”) as well as the Bangladeshi police.  He has since been released on recognizance pending the determination of his claim.

6.  According to the applicant’s case, he was a member of the Bangladesh Nationalist Party (“BNP”).  He worked as a supervisor for a bus company.  In mid-2010, there was a confrontation between the applicant’s BNP bus workers and AL bus workers of rival transport companies.  A large fight erupted which was broken up by the police.  The applicant was involved in the fighting and was arrested at the scene.  His boss managed to have him released on bail after three days of police detention.  In mid-2011, he moved to Folpotti to stay with his maternal uncle for two months.  The applicant left Bangladesh for China in November 2013.

The Director’s decision

7.  By a Notice of Decision dated 30 March 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered the torture risk[2], BOR 3 risk[3] and persecution risk[4].  The Director observed that the applicant was not personally targeted.  The AL bus workers had not even tried to locate him after the fight incident[5] and the applicant received no ill-treatment from the Bangladeshi police in the past[6].  Moreover, the Director considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk[7].  The Director determined that the dispute between the applicant and the AL bus workers is entirely personal and private in nature, the risk of harm from the AL bus workers or the Bangladeshi police is small and there are no substantial grounds to believe that the applicant’s feared ill-treatment is likely to materialize[8].  The non-refoulement claim was rejected.

8.  By a Notice of Further Decision dated 3 July 2017, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including right to life under article 2 of the Hong Kong Bill of Rights[9].

The Board’s decision

9.  The applicant appealed to the Board against the Director’s decisions.   An oral hearing was held on 11 September 2017.  The Board found that the applicant has never been tortured or injured in any way. The police arrested him for assault and he admitted he did inflict injuries on a police officer.  He was granted bail and absconded, as did his six co-workers. He was not mistreated in any way by the police and was permitted legal representation[10]. The police were obviously carrying out their duty when they arrested him and are rightly making efforts to locate him to re-arrest him[11].  The Board held that the applicant failed to establish his claim on all applicable grounds and dismissed the appeal on 15 February 2018.

The intended judicial review

10.  The applicant filed a Form 86 and an affirmation on 22 February 2018 to seek leave to apply for judicial review against the decision of the Board on the grounds that the Board had unlawfully fettered its discretion by refusing his appeal on grounds that he did not satisfy the requirement, it acted in a procedurally unfair manner, the decision to refuse his appeal was unreasonable or irrational or was a result of procedural errors or unfairness, it failed to meet the greater care and duty owed to a self-represented claimant, and relied on information not officially recognized or was simply hearsay or outdated cases.

The judge’s decision

11.  The judge considered that (1) the Director had served the hearing bundle on the applicant in time and the bundle would consist mostly of documents previously seen or submitted by the applicant and there was no evidence to show that the bundle was difficult or voluminous[12]; (2) the applicant exaggerated his problem getting translation assistance as he admitted he had a friend to prepare Form 86 and the affirmation for him[13]; (3) there was no evidence to show that the applicant had complained to the adjudicator or was confused as to what had happened[14]; (4) the Director and the Board had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable and there is no error of law or procedural unfairness in their decisions[15].

12.  The judge was not satisfied there is any prospect of success in the applicant’s intended application for judicial review and refused the leave application accordingly.

13.  The applicant filed a Notice of Appeal against the decision of the judge on 10 August 2018.

The grounds of appeal

14.  These grounds of appeal are stated in the Notice of Appeal[16]:

(1) the applicant will face hardship if he is to return to his home country;

(2) the Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  It has also relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations.

15.  The above ground (2) was stated in paragraph 10 of the grounds attached to Form 86 for the application for leave to apply for judicial review.

Analysis

16.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information (“COI”) materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

17.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  In respect of new arguments, the Court of Appeal will not generally entertain new arguments fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

20.  The first ground of appeal was not raised in the application for leave to apply for judicial review.

21.  The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive not canvassed at the Court of First Instance and for which leave has not been sought within time.  In any event, this ground of appeal is lacking in particulars and the applicant failed to show there is any error of law or procedural unfairness or irrationality in the decision of the Board.  Therefore, ground (1) is bound to fail.

22.  The applicant’s complaint in ground (2) is just a bare assertion without evidence in support which can refute the Board’s findings.  Besides, he failed to point out which piece of information or which case relied on by the Board was not officially recognized or outdated.

23.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  It has not been demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  There is no basis for the Court of Appeal to interfere with the judge’s decision. Ground (2) has no merit.

24.  There is no merit in the appeal and no prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.