TALUKDAR MD JASHIM UDDIN v. KEVIN ANTHONY BROWNE, THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION

CACV 115/2019

[2019] HKCA 894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 115 OF 2019

(ON APPEAL FROM HCAL 1395 OF 2018)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

Introduction

1.1  This is an appeal by Mr. Talukdar MD Jashim Uddin (“the appellant”) from an order of DHCJ K W Lung (“the Judge”) given on 25 February 2019 dismissing his application for leave to start judicial review proceedings.  The Judge’s reasons for that order were given in the Judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1]. 

1.2  The appellant had applied to the Judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB” or “the Board”) given on 29 June 2018 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of Bangladesh born in 1972.  He worked in Dhaka as a salesman from 1991 to 1992 and owned a shop there from 1992 to 2010.  He arrived in Hong Kong on 16 July 2013 as a visitor and overstayed.  He was arrested by the police on 26 February 2014.  After his arrest, he raised a claim by way of written representation on 1 March 2014 that he should not be refouled. Subsequently, he lodged his non-refoulement claim form on 11 April 2016. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision (as defined at paragraph 7.2 below) and in gist in the Judge’s Decision.  Put briefly, what he alleged was as follows.

-  In around 1996, the appellant joined the Bangladesh Nationalist Party (“BNP”) as a member.  He was promoted as Vice President of the Jatrabari Police Station level in around 1998.  He had been frequently harassed by verbal threats from Awami League (“AL”) members as the law enforcement authorities were on their side.

-  In around 2012, the appellant and many other BNP members attended a BNP rally at the Press Club.  They were attacked by members of the AL and security forces.  The appellant was injured and stayed at the hospital for about 17 days.  This was the only incident alleged by him which involved physical harm (see para.49, TCAB Decision).  He said in one version that he did not report the attack to the police, and in another version that he had in fact reported the attack to the Paltan Police Station but the police did not record his complaint (see para 30, TCAB Decision).

-  About 2 to 3 months after his recovery, AL members started to threaten him and BNP members again.  He reported the case to the police but the police did not take action.  The appellant hid for a few days in other places.  AL members continued to demand money from businessmen.  BNP members did not report the incidents to the police because they believed the police would not investigate them.

-  Meanwhile, the appellant’s business deteriorated and he failed to keep up with repayments of the bank loan.  The bank filed a case against him. He claimed the court issued an arrest warrant against him.  This was the reason why he fled the country (see para.48, TCAB Decision).

-  The appellant applied for a passport in 2012 and left the country on 15 July 2013.  He arrived in Hong Kong on 16 July 2013.  Afterwards, he received a telephone call from his wife informing him that AL members had filed a false murder case against BNP members.  Although the charge arose from an incident which occurred after he had already arrived in Hong Kong, he was charged as the 3^rd defendant.  He was unable to produce any documents in support of this murder charge (see para.50, TCAB Decision), even though he claimed his wife had received a notice requiring him to attend court (see para.39, TCAB Decision).  He gave different versions of what happened to the other defendants.  In one version he alleged the 1^st defendant was arrested and had been jailed for the incident.  In another version, he alleged that neither the 1^st nor 2^nd defendant was arrested and they had both fled the country (see para.53, TCAB Decision).  

-  From 2015 to 2016, the appellant had various telephone conversations with his wife and learned that the AL members continued to threaten his family members and ill-treat other BNP members.  The AL members also demanded his wife to pay one million Taka to their leader otherwise they would kill the appellant upon his return. 

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1  What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2  “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3  “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4  What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decision

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  He supplied additional facts when informed that the Director would also consider “BOR 2” risk apart from “BOR 3 risk”, “persecution risk” and “torture risk”.  After the interview, the Director rejected the appellant’s claim in respect of “BOR 2 risk”, “BOR 3 risk”, “persecution risk”, and “torture risk” for reasons set out in a decision given on 7 December 2016.

The TCAB’s Decision

7.1  The appellant then appealed to the TCAB which held a hearing at which the appellant was present.

7.2  After assessing his claim, the TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision dated 29 June 2018 (“the TCAB’s Decision”).

7.3  Essentially, the Board found that on his own evidence, the appellant was an unreliable witness.  He admitted he had come to Hong Kong to avoid civil liability to the bank (see para.48, TCAB Decision).  There was no evidence showing that he was of any particular interest to the AL.  There was only one allegation of one incident involving physical harm in 17 years of his association with the BNP, and that was during a protest involving many BNP members (see para. 55A(b), TCAB Decision).  He did not produce any documents to support the alleged murder charge (see para.39 and 50, TCAB Decision).  He had also given contradictory statements with regard to the other defendants allegedly involved in that charge (see para.53, TCAB Decision).

7.4.  Moreover, the Board found that the appellant was able to leave his country without encountering any problems, so there was no evidence showing that the Bangladeshi government had any adverse interest in the appellant (see para.55(C)(b), TCAB Decision). 

Application for leave to start judicial review

8.1.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision.  The member of the Board was named as respondent and the Director was named as an interested party. 

8.2.  The appellant’s grounds were summarized by the Judge as grounds (1) to (11) in his Decision, as follows: (1) - (4) unfairness at the hearing before the Board; (5) misdirection in law in thinking the appellant needed to have experienced torture in the past; (6) - (9) the Board had failed to carry out updated research in respect of COI information and had given the wrong weight to irrelevant materials; (10) failing to call for psychological or psychiatric reports; (11) no legal representation before the TCAB.

8.3.  However, the affirmation in support lacked particulars in respect of the appellant’s grounds. 

The Judge’s Decision

9.  The appellant appeared at the hearing before the Judge.  As mentioned earlier, the Judge refused leave for reasons set out in the Judge’s Decision, in particular:

“12. The Adjudicator did not believe the facts as alleged by the applicant. The applicant therefore has no factual basis for his claim.

13. The applicant had appeared before me. He confirmed that he had no complaint against the Immigration officer or the Adjudicator. He confirmed that he had a fair screening and a fair appeal hearing. He understood the Hearing Bundle and had no difficulty in communicating with the Adjudicator. Grounds (1) to (4) cannot sustain.

14. As to ground (5), the Adjudicator was entitled to consider his past experience to consider his allegation that he would be harmed if he was refouled to Bangladesh. His allegation would be fortified by his past experience of torturing. It is a matter of weight that the Adjudicator would give to his allegation.

15. Grounds (6) to (9) are his personal opinion, with no evidence in support of them. They are unsubstantiated.

16. As to ground (10), the applicant had not raised this issue with the Adjudicator. He simply cannot complain against the Board.

17. As to ground (11), the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.”

18. I find that the applicant is unable to show that he has a reasonable chance of success in the proposed judicial review.

CONCLUSION

19. Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 11 March 2019, the appellant appealed the Judge’s order to this court.  He stated the following grounds of appeal in his affirmation:

“(1) [The Judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) [The Judge] failed to provide detailed reason in support of [his] decision”.

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.  The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”).  

11.2.  When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration[2]and I will not repeat them here.  

11.3.  Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong[3].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[4]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was directedby the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal. The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case. 

13.1.  In relation to the first ground, state acquiescence was not relevant in this case as the Board had not believed the appellant’s story and the Judge was correct in holding that the Board was entitled to do so.  

13.2.  In relation to the second ground of appeal, the Judge had discussed and analyzed the grounds of judicial review, as set out above.

14.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.