SHEKH MAHAMMAD IQLAZ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 324/2018

[2019] HKCA 180

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 324 OF 2018

(ON APPEAL FROM HCAL 1126 OF 2017)

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J U D G M E N T

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

Introduction

1.1.   This is an appeal by Mr Shekh Mohammad Iqlaz (“the appellant”) from an order of DHCJ Josiah Lam (“the judge”) given on 9 July 2018 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”) 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

2.1.   The appellant is a national of Bangladesh.  He alleged that he would be harmed or killed by the Awami League (“AL”) because he was an active member of Bangladesh Nationalist Party (“BNP”).  I will refer later to alleged events concerning the attack by the AL.

2.2.   The appellant entered Hong Kong through China illegally on 7 July 2014 and was arrested by the Hong Kong police on 8 July 2014.  He lodged his claim on 12 July 2014 for non-refoulement on the basis as aforesaid.  After assessment by the Director, his claim was rejected. 

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 dated 8 December 2017 (“the TCAB’s Decision”) and in gist in the Judge’s Decision.  Put briefly, his allegations are as follows:- 

-   The appellant alleged that he joined the BNP when he was 20 years old and was an active member.  AL became the ruling party in Bangladesh in 2008 and was powerful.  The AL members were violent to the BNP members from time to time.

-   Since the appellant refused to join AL, the appellant experienced 3 encounters with the AL members from the end of 2011 to early 2014[2]. He was verbally abused at the first encounter.

-   During the period between the first and second encounters, the appellant moved to Paikgachha Village and stayed there for 1 year peacefully.  He worked as a salesman there.  Subsequently, the applicant moved and stayed in Jessore for around 10 months.  He worked as a salesman with no threats from AL.

-   In October 2012, the appellant returned to his native village and lived with his family at home.  One day, the appellant was approached by AL members and was injured.  He stayed home for recovery until March 2013 and did not encounter any problem from AL.

-   After the election on 5 January 2014 he was abused by AL members who attempted to attack him but he was not injured.

-   The appellant decided to leave Bangladesh and applied for a Bangladeshi passport without any problem.  His Bangladeshi passport was issued in Dhaka on 27 March 2014.  Subsequently, he left his country for China and then entered Hong Kong illegally.

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 Decisions

6.  The Director’s representative had interviewed the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim.  The Director rejected the appellant’s claim for non-refoulement for reasons set out in a decision given on 27 May 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a further decision given on 18 July 2017 in respect of “BOR 2 risk" (“the Director’s Decisions”).  

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing on 28 September 2017 at which the appellant was present.  

7.2.   The TCAB asked the appellant various questions and found that the evidence of appellant was changing and contradictory.  For instance, he said he was targeted for being a member of the BNP.  However he could not satisfactorily explain why he was allegedly attacked, but his brother (who worked regularly at the BNP office) had not.  Another surprising allegation was that the appellant said he had held a specific post in the BNP, but could not recall which, and then said he was previously the Secretary or the President, but could not recall which.  Having considered the overall evidence, the TCAB rejected the appellant’s account and confirmed the Director’s Decisions that the appellant had failed to establish his claim for non-refoulement under all applicable grounds.  

7.3.   For the above reasons, TCAB dismissed the appellant’s appeal for the detailed reasons set out in the TCAB’s Decision.

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision, with TCAB/Non-refoulement Claims Petition Office and the Director named as the putative respondent and putative interested party respectively.  The appellant made bare assertions with respect to procedural impropriety, error/misdirection in law and irrationality/illegality, and asked for the matter to be looked into again. 

The Judge’s Decision

9.1.   The appellant appeared at the hearing before the judge. 

9.2.   As mentioned earlier, the judge refused leave in his Decision and gave reasons at [31]-[44], in particular

“42.  I have reviewed the Adjudicator’s decision under “rigorous examination and anxious scrutiny”.  I find none of the Applicant’s complaints can stand.  The Adjudicator had proper basis for her findings, conclusions and decisions which were not Wednesbury unreasonable.  She made no errors of law and there was no procedural unfairness.  The Adjudicator had engaged in joint endeavour with the Applicant in the screening process.  The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.  The Adjudicator’s report showed she was acquainted with the facts of the Applicant’s case.  She considered the Applicant’s claim carefully and applied the law correctly.  She was entitled to render those findings, conclusions and decisions which were all reasonable.  The Adjudicator had achieved the high standards and decisions which were all reasonable.  The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

43.   The Director is an interested party.  I have also reviewed the Director’s decision and further decision under “rigorous examination and anxious scrutiny”.  I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness.  What has been said of the Adjudicator in para. 42 is also true of the Director.  The Director too had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”

Appeal to Court of Appeal

10.  By a Notice of Appeal dated 19 July 2018, the appellant appealed the judge’s order to this court.  In his affirmation in support filed on the same day, the appellant advanced the following grounds of appeal:

“(1) The Honourable Deputy High Court Judge Josiah Lam was wrong in law in holding that there was no state acquiescence or involvement.

(2)   The Honourable Deputy High Court Judge Josiah Lam failed to provide detailed reason in support of her decision.”

11.  In addition, the appellant repeated the same grounds for the judicial review against the TCAB in his affirmation in support of his appeal.  These grounds were canvassed at the lower court hearing and were duly rejected by the judge.

Legal Principles

12.  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.

12.1.   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”).  

12.2.   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[3]and I will not repeat them here.  

12.3.   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[4].  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall[5]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

13.  After filing his Notice of Appeal, the appellant was given directions by 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

14.  The issue of state acquiescence or involvement as alleged by the appellant was not engaged in his application for leave to apply for judicial review.  As evidenced by paragraph 63 of the TCAB’s Decision, the TCAB had rejected the appellant’s claim for non-refoulement on the issue of credibility and the only fact accepted was that he was from Bangladesh.  We do not see any error of law in the Judge’s Decision.  In the circumstances, Ground 1 is baseless and is rejected.

15.  Ground 2 is a bare assertion which is not supported by any reason.  The judge had set out the reasons in detail in the Judge’s Decision explaining why the appellant’s claim for non-refoulement was without merit: see [31]-[44].  We therefore reject Ground 2.

16.  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. 

17.1.   The appellant’s allegations had already been thoroughly examined by the TCAB on the facts and the judge was correct in holding that there was no error of law or procedural unfairness and no unfairness after considering those decisions with rigorous examination and anxious scrutiny.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

17.2.   Finally, general assertions of a blanket nature with respect to the grounds stated in the appellant’s affirmation in support of his appeal cannot be accepted as realistic grounds of appeal.

18.  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

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