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

CACV 364/2021

[2022] HKCA 999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 364 OF 2021

(ON APPEAL FROM HCAL NO 2738 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

Introduction

1.  On 16 July 2021, DHCJ To (“the Judge”)  refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 15 November 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“the Director”)  dated 24 June 2013 and 30 December 2016 rejecting the applicant’s non-refoulement claim on all applicable grounds.

2.  On 26 July 2021, the applicant filed a Notice of Appeal to this Court against the Judge’s decision. On the same day, he lodged a letter with the Court indicating his consent to have this appeal disposed of on paper without an oral hearing.  As it is appropriate to do so, we proceeded to consider the appeal on paper without an oral hearing.

3.  Pursuant to the directions of Registrar of Civil Appeals of 26 July 2021, the applicant should lodge his written submissions on or before 9 August 2021.  He failed to do so.

4.  The Registrar further directed that in case the applicant fails to lodge his written submissions as directed, he will be deemed to have abandoned his right to rely on written submissions, and the Notice of Appeal will be referred to the Court of Appeal for consideration based on the available documents and materials. 

Background

5.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 27 May 2007 and was arrested by police on the same day. He was then referred to the Immigration Department for investigation.  He filed a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 30 June 2007 and subsequently a non-refoulement claim on 12 November 2013 alleging that if refouled, he would be harmed or even killed by the supporters of Bangladesh Nationalist Party (“BNP”)  as he is a supporter of Awami League (“AL”).  The factual background of this case was succinctly summarized by the Judge in [6] – [10] of the Form CALL-1 ([2021] HKCFI 2050).

6.  By Notices of Decisions dated 24 June 2013 and 30  December 2016, the Director assessed the applicant’s claim on all applicable grounds i.e. BOR 2 risk[1], BOR 3 risk[2], torture risk[3] and persecution risk[4], and determined it against him.

7.  The applicant appealed the Director’s decisions to the Board.  He attended an oral hearing on 1 August 2018 and by its decision dated 15 November 2018, the Board dismissed the appeal and confirmed the Director’s decisions.  For the reasons set out in [64] to [94], the Board found that the applicant’s evidence was based on unsupported allegations that he had been attacked by a group of 10 to 12 BNP supporters when BNP was having a rally near his house in 2001.  No police or medical report was produced in support.  His evidence of the alleged event was inconsistent and unreliable.  Further, his claim that his shop had been vandalised, and that BNP supporters went to his house to look for him, were based on hearsay evidence and speculation to which the Board attached no weight.  The applicant’s case was rejected due to lack of credibility.  In any event, even on his own account, there was only one incident of assault in 2001 from which he claimed he only suffered bruises and a fractured finger.  He left his house and nothing eventful happened to him for some 6 years after which he went to Mainland China.  The Board was not persuaded that after more than 17 years since he left his home village, any BNP supporters would still be interested in looking for him.  The Awami League is now in power.  There was no evidence to suggest the attack was instigated by or with the acquiescence or involvement of a state agent.  Objective Country of origin information suggested that there is reasonable state protection upon his return to Bangladesh.  For the aforesaid reasons, his non-refoulement claim was rejected on all applicable grounds.

Decision of the court below

8.  On 3 December 2018, the applicant filed his Form 86, advancing the following grounds of relief:

(1)  the Board had unlawfully fettered its discretion by refusing the applicant’s appeal on the grounds that it did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal without giving him language and legal assistance;

(3)  the Board’s decision to refuse the appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

9.  The applicant did not attend the scheduled hearing without any good reason, and the Judge disposed of the application on paper.  After due consideration of the decisions of the Director and the Board, the Judge refused to grant leave to apply for judicial review for reasons set out in [17] – [23][5] of the JR Decision:

“Ground (1)  – Unlawful exercise of discretion

17. Under this ground, the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the two notices and dismiss his appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (2) – Procedural unfairness

18. The basis of the Applicant’s complaint about procedural unfairness is that the majority of the documents in the appeal bundle used before the Board were in English and the Applicant did not have sufficient time to prepare for the hearing due to his limited skills in English and he being unrepresented.

19. In Re Zafar Muazam[6], Re Zunariyah[7], Re Zahid Abbas[8], Re Tariq Farhan[9], and Re Lopchan Subash[10], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[11] nor the judgment of FB v. Director of Immigration[12] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board.

20. Similarly, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[13], the Court of Appeal agreed wtih the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his first language for his convenience and benefit. He has to find assistance himself from among his friends and ethnic community. Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

16. The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter at the screening interview and in presenting his case to the Director. He also had the services of a qualified interpreter at the oral hearing before the Board. Though the appeal bundle is in English, it is basically made up of his NCF, the records of the two screening interviews and the decision of the Director in the two Notices, including the COI. The two Notices of the Director were issued to him in June 2013 and December 2016. It was not until 1 August 1 2018 that the oral hearing was held. The Notices are in English and, unfortunately, no translation was provided. He cannot expect these documents to be fully translated for him. He had in between the issue of the Notice and the oral hearing about two or five years to seek assistance from among his own circle. Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English. Also, he could have sought assistance from the interpreter at the oral hearing before the Board.

17. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. His complaint about lack of legal and language assistance is over-exaggerated

18. Part of the Applicant’s complaint about procedural unfairness is that the COI relied on by the Board was not officially recognised and made up of hearsay and was outdated, which resulted in the Board making groundless speculation that it was safe for the Applicant to return to Bangladesh. He quoted three COI, namely USHR 2010, USRF 2010 and the Report on the International Commission of Jurists and argued that had these COI been considered by the Board, it would have been sufficient to support a finding of a consistent pattern of human rights abuses in Bangladesh and there is a lack of state protection. The Court was unable to identify the first two COI and the relevance of the third. The Applicant was also unable to produce the COI for the Court’s consideration.

19. The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices for 2015: Bangladesh and Country Report on Human Rights Practices for 2014: Bangladesh published by the United States Department of State; The Wold Factbook, published by United States Central Intelligence Agency; Country Information and Guidance on Bangladesh: Background information, including actors of protection, and internal relocation published by the United Kingdom Home Office in November 2014; Country of Origin Information (COI)  Report on Bangladesh dated 31 August 2013 published by the United Kingdom Government; and other news reports and articles. Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue, not to mention his failure to provide any publication contradicting these COI.

20. The Applicant complained about the weighting put on the COI and that the Board was cherry-picking. This is basically a finding of fact which is solely within the province of the Board as the tribunal of fact. In any event, in view of its finding that the Applicant does not face a real chance of harm of any kind for any of the reasons claimed, the Board’s finding on availability of state protection and internal relocation was unnecessary for its decision.

21. The Applicant complained about the failure to call for psychological and psychiatric evaluations and reports at any stage of the screening process or the appeal. There was not an iota of evidence suggesting that the Applicant had been subjected to psychiatric or psychological ill-treatment which would make it necessary for the Director to conduct such investigation. This complaint is wholly frivolous and vexatious.

22. In his supporting affirmation, the Applicant complained that it was unfair for the Director to have made a decision on his BOR 2 claim without conducting a screening interview. This is factually wrong. A screening interview was conducted on 21 November 2016 in relation to, inter alia, his BOR 2 claim. It was after this interview that the Director issued the Notice dated 30 December 2016 dismissing his BOR 2 claim, BOR 3 claim and Persecution claim. The immigration officer had conducted an earlier screening interview on 5 June 2013 in relation to his torture claim after which the Notice of 24 June 2013 was issued.

23. The Court considered the complaints about procedural unfairness is groundless.

Ground (3) – unreasonableness and irrationality

21. As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of fact by the Board. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[14].

22. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. There were no such vitiating elements in the Decision. The Decision was utterly fair and without fault.

Ground (4) – Breach of greater care and duty owed to a self-represented claimant

23.  The Applicant did not particularise the duty and the breach.  In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicant.”

Appeal to this Court

10.  On 26 July 2021, the applicant filed his Notice of Appeal stating:

“The High Court give me an order to dismiss my leave to apply for judicial review, but he could not show any reason. Please quash his decision.”

Legal principles

11.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  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 on appeal, which operates as a re-hearing, 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 COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board.  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.

(2)  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, or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account of relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

12.  The ground of appeal set out in the Notice of Appeal is vague, without particulars or elaboration, and it is thus not a valid ground of appeal: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

13.  In the present case, the Board had rejected the applicant’s claim for lack of credibility, and it was not persuaded that he would face a genuine risk of harm upon his return to Bangladesh.  Even on the applicant’s own evidence, he had not been subjected to any harm or injury which attained the minimum level of severity that would amount to torture, and the Board found that the applicant had failed to substantiate his non-refoulement claim on all applicable grounds.  The Board was entitled to make the findings as it did and the Judge has rightly found that there was no valid public law ground to intervene.

14.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  We are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny, and the Judge was plainly right to refuse leave to apply for judicial review.

Order

15.  For the above reasons, this appeal is dismissed.