AHAMED MOHAMMAD SAFIK v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 314/2019

[2019] HKCA 1213

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2019

(ON APPEAL FROM HCAL 364 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

Introduction

1.1.  This is an appeal by Mr Ahamed Mohammad Safik (“the appellant”) from an order of DHCJ Josiah Lam (“the Judge”) given on 28 June 2019 dismissing his application for leave to start judicial review proceedings. The Judge’s reasons for that order were given in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)[1].

1.2.  This is the appellant’s second leave application to start judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“TCAB / Board”) given on 7 July 2017 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. The appellant’s first leave application was refused by DHCJ Woodcock on 2 February 2018 in HCAL 448/2017[2]. The appellant did not lodge any appeal against the decision of DHCJ Woodcock.

Background

2.  The appellant is a national of Bangladesh now aged 38. He helped his father in farming for 8 years. His father was the president of the Bangladesh Nationalist Party (“BNP”) of the Union Phutibilla located in where they lived. He joined Chatra Dal, the student wing of the BNP since 2008 and became the General Secretary in 2010, but now no longer participates in the BNP. He entered Hong Kong illegally on 6 September 2014 and was arrested by the police on 15 September 2014 for illegal stay. Afterwards, he raised a claim for non-refoulement on 18 September 2014. 

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 and in gist in the first decision made by DHCJ Woodcock in HCAL 448/2017 which will not be repeated here. Put briefly, what he alleged was that if he was to be returned to Bangladesh, he would be harmed or killed by Sabir Ahmed, Ziabul, Kapiludin, Salim, Shohag and Babul from the Awami League (“AL”) as he refused their demand to join the AL.

4.  The appellant’s claim was examined to see if he would be subjected to any of the following risks: “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 an interview with the appellant. The appellant had legal assistance to prepare his claim. After the interview, the Director rejected the appellant’s claim for reasons set out in a decision given on 25 July 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 1 June 2017 in respect of “BOR 2 risk”.

The TCAB’s Decision

7.1. The appellant appealed to the TCAB which held a hearing at which the appellant was present and had the assistance of an interpreter. 

7.2. The TCAB reviewed the evidence of the appellant in detail. Essentially, the TCAB found that the appellant was not a credible witness as his alleged facts were inconsistent ([26]).  He testified at the hearing and provided inconsistent and implausible evidence together with non-persuasive explanations. The TCAB rejected his allegations of political association and participation as well as the alleged assault and threats inflicted upon him ([27]-[29]). The TCAB dismissed the appeal (“the TCAB’s Decision”). 

Applications for leave to start judicial review and the judges’ decisions

HCAL 448/2017

8.  The appellant first took out an application in the High Court on 25 July 2017 for leave to start judicial review proceedings to quash the TCAB’s Decision. His leave application was dismissed by DCHJ Woodcock on 2 February 2018 after considering his case in detail, in particular:

“11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to be without fault.  He analysed the material, claim and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

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17. I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

HCAL 364/2018 

9.  The appellant did not appeal from the decision made by DCHJ Woodcock, but made the second leave application for his intended judicial review to quash the TCAB’s Decision. The appellant set out his grounds in his Form 86 which may be summarized as follows:

(1)  The Board failed to maintain the high standard of fairness by not delivering the hearing bundle to the appellant within a reasonable period of time, and there was a lack of interpretation. 

(2)  Lack of legal assistance and interpretation to the appellant who did not have sufficient time to prepare for the appeal hearing. At the hearing, the interpretation service was not adequate causing the appellant to be unable to give evidence. 

(3)  The Board’s decision that the appellant’s credibility was questionable was unreasonable and the appeal hearing was unfair due to (1) and (2) hereinabove.

(4)  High standards of fairness for making a decision are required and there are minimum standards of procedural fairness required in the decision-making process. 

(5)  The Board erred in approaching the matter by not questioning the Director who did not attend the appeal hearing, and not considering the country of origin information.

(6)  The Board failed to consider that the appellant lacked legal representation and did not inform the appellant that he could complain.

10.  The appellant appeared at the hearing before the Judge. The Judge refused leave for reasons set out in [18] - [25] of the Judge’s Decision.

“18. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

19. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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 (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.”

20. The Applicant's claim had been dealt with by the Director and the Adjudicator. He applied for leave for judicial review for the first time on 25 July 2017. The case number was HCAL448/2017. Deputy High Court Judge Woodcock heard the Applicant on 17 November 2017.

21. The Judge gave her decision on 2 February 2018. The Applicant did not appeal against the Judge’s decision. Instead, he on 7 March 2018 filed the 2^nd Judicial Review application (HCAL364/2018).

22. The Applicant was asked why he repeated applying for leave for judicial review. He said there were still lots of problems in his country.

23. The Applicant said there was ‘a lack of presentation’ in his previous application for leave for judicial review. That was not correct. The Applicant presented a number of complaints in his affirmation dated 25 July 2017 in the 1^st Judicial Review. Those included his present complaints. He was also before the Judge on 17 November 2017 to explain his first application for leave for judicial review.

24. The Applicant must show good reason to justify a renewed application for leave for judicial review. He could not simply ask the court to consider his case again on such grounds already submitted or which could have been submitted in the 1^st Judicial Review.

25. The Applicant failed to justify his 2^nd Judicial Review application, which was merely a repetition.  His unjustified repetition must be regarded as an abuse of process.  His case had been duly considered by the Judge in the 1^st Judicial Review.  I should not reconsider it.”

Appeal to Court of Appeal

11.  By a Notice of Appeal filed on 5 July 2019, the appellant appealed the Judge’s order to this court. He stated the following in his Notice of Appeal:

“…… the [appellant] will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Legal Principles

12.  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 we 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. The appellant filed his skeleton submissions on 13 August 2019 submitting that “high standards of fairness” are required for the Judge to deal with his application for leave for judicial review of the TCAB’s Decision. 

Discussion

14.  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. 

14.1. The appellant’s first leave application was considered by DHCJ Woodcock under “rigorous examination and anxious scrutiny” and was dismissed as his intended appeal had no realistic prospect of success. The TCAB’s Decision was based on its findings of fact and the judge is entitled to relied on its findings.

14.2. Instead of lodging an appeal against the decision of DHCJ Woodcock, the appellant made his second attempt to apply for leave to start judicial review proceedings before the Judge. We can see no justification for the appellant to take such course. There was no change of circumstances. 

14.3. The appellant’s grounds of appeal do not bear any relationship to the Judge’s Decision. The COI information had hardly any role to play in this case. The appellant failed to provide a good reason to justify his renewed application for leave for judicial review. Also, the appellant relied on the same set of the alleged facts and most of his grounds for judicial review had been reviewed by DHCJ Woodcock. The Judge is correct that the appellant’s repeated leave application is an abuse of process.

15.  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

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