RE MD NOWAB MIAH

CACV 291/2020

[2021] HKCA 90

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 291 OF 2020

(ON APPEAL FROM HCAL 2128 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 17 July 2020 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”).[1] The intended judicial review is directed against the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 27 September 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) dated respectively 24 May 2016 (“the Director’s First Decision”) and 5 July 2017 (“the Director’s Second Decision”) rejecting the applicant’s non‑refoulement claim (collectively “the Director’s Decisions”).

2.  By a letter dated 24 July 2020, the applicant consented to the appeal being heard by a two‑member court.

A.  Background

3.  The applicant is a national of Bangladesh, born in 1976.  He entered Hong Kong illegally on 19 December 2013 and was arrested by the police on 22 December 2013.  He lodged a non‑refoulement claim on 26 December 2013.

4.  The details of the applicant’s claim and his personal background were set out in paragraphs 10‑11 of the Director’s First Decision, and paragraph 20 of the Board’s Decision.  The applicant said that if refouled he would be harmed or killed by (1) members of Awami League (“AL”); (2) the Bangladeshi authorities because of his involvement with Jamaat‑e‑Islami (“JEI”); and (3) his nine trade creditors because of his failure to make payment for goods purchased on credit for operating his rice mills.  The applicant had been involved with JEI since 1988.  He acted as the president of JEI committee in Kamalgonj from 1995 to 2009 when he resigned and went to Dubai for work.  He went back to Bangladesh in 2010, encountered the first fight with AL members, and suffered injuries. He then moved to Dhaka to live with his parental uncle but he heard that his business was burnt down by AL members, and that his wife and brothers were arrested and detained at a police station.  Further, since his business was burnt down, he had lost his income.  He was beaten two times by his creditors seeking repayment.  Before he fled out of his home country, he attended an assembly which was ambushed by a joint force of Bangladesh police and the army.  Out of fear, he eventually fled to Hong Kong for protection.

B.  The Director’s Decisions and the Board’s Decision

5.  The Director assessed the BOR3 risk,^[2] the persecution risk,^[3] and the torture risk^[4] in the Director’s First Decision whereas the Director’s Second Decision covered the assessment of the BOR2 risk.^[5]  The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected his claim.

6.  The applicant appealed to the Board.  The appeal was heard on 25 October 2017, during which the applicant was assisted by a Bengali interpreter.  The procedures and his right to amend or supplement the information set out in his non‑refoulement claim form and the written answers were explained to the applicant.  The applicant adopted all the evidence contained in the hearing bundles before the Board but chose not to give evidence. 

7.  Having considered the materials before it, the Board found the applicant’s version of events not credible.  His alleged fear of the AL members was unsubstantiated, implausible, and mostly based on hearsay.  His story about the ambush by Bangladesh authorities lacked specifics as to whether he was targeted or whether he suffered any injuries.  Also, his alleged dispute with creditors was private without state involvement (paragraphs 24‑26 of the Board’s Decision). There was no reliable evidence that the applicant had sustained physical or mental suffering of the requisite severity.  Further, the Board found that state protection was available to the applicant (paragraphs 29‑31 of the Board’s Decision).  The Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

C.  The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 5 October 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decisions.  The grounds for judicial review stated in his supporting affirmation and his skeleton submissions of 26 November 2019 were summarized in paragraph 16 of the Deputy Judge’s Decision:

“ 16. On 5 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but in his supporting affirmation of the same date as well as his skeleton submissions dated 26 November 2019 he put forward various grounds for his intended challenge essentially against the Board’s decision which can be summarized as follows:

(1) that the adjudicator was unreasonable in making speculative findings with regard to the assessment of risk in the consideration of his claim;

(2) that the adjudicator failed to properly consider and/or assign the appropriate weight to Country of Origin Information and further failed in his duty of joint endeavor in assessing his claim; and

(3) that the adjudicator made mistake of fact and/or failed to take a relevant factor that his risk of harm emanates from his political opinion generally.”

9.  After examining the arguments, the Deputy Judge dismissed the application with reasons set out at paragraphs 17‑32 of the Deputy Judge’s Decision:

“ 17. However, a careful examination of his skeleton submissions reveals various references of what the Applicant claimed to have been made by the adjudicator in the Board’s decision are factually incorrect or simply wrong, as they appear to refer to a totally different case but simply copied or adopted by the Applicant as if they also applied to his own case, as clearly evidenced in all three of his grounds for his intended challenge.

18. Under his Ground (1) in which the Applicant argues that the adjudicator had made speculative findings with regard to the assessment of risk, he stated in paragraph 9 of his submission as follows:

‘ With regard to the 1^st incident ‘whereby I and my friends were attacked by a number of AL members, the Adjudicator found at §26 that:

‘ That my group could manage to escape while being outnumbered shows the AL had no intention to kill or harm seriously to me, especially when one of the attackers was armed with a pistol and had it drawn out to shoot. They had ample opportunity of shooting me …… Surely enough if they intended to kill or harm seriously for me. They could have done so in that incident or could have chosen a better place and time to do it more easily when I was not in the company of friend.’ ’

19. This is however not what was stated in §26 of the Board’s decision where the adjudicator set out her material findings in the evaluation of the Applicant’s evidence, and it is clear that she never made any such statement as above or anything remotely resembling that statement either in that paragraph or anywhere else in the decision.

20. While the adjudicator did in §20(e) of the decision refer to the ‘First Incident’ which occurred in January 2010 as mentioned in [5] above in which the Applicant claimed that he together with 400‑500 JEI supporters were attacked by 800‑900 AL supporters with wooden sticks, but even on his own case the Applicant never mentioned anything about any AL member drawing out a pistol to shoot. It was simply not a fact of his case as claimed by the Applicant, nor was it a finding of the adjudicator.

21. In support of this ground and arising from that factually incorrect statement in his skeleton submissions, the Applicant proceeded to state as follows:

‘ 10. It was open to Adjudicator to reject the facts as presented by me as being implausible and provide reasons for such finding. However, it is evident from paragraph that the Adjudicator had accepted the facts – at no time in §26 does he raise the issue of credibility or state that my account is implausible (in contrast to my handling of a number of other material facts in the case.

11. Instead, he speculates as to the intention of the perpetrators and the degree of harm they intended to inflict and further, speculate as to how the incident could and should have unfolded, suggesting an alternative scenario (that would presumably support a conclusion that my fear of the AL was justified). Therefore, it was the failure of the incident to confirm to the Adjudicator’s own expectations of what he saw to reasonably or plausibly support a finding of fear which led to a conclusion that my fear was not justified as opposed to any proper assessment of credibility.

12. In the alternative, even if the court is of the view that the Adjudicator rejected my evidence implausible, he did so not on the objective assessment of evidence presented but through speculation and conjecture of what he considered to be more likely which was, in turn, based on his own gut instinct.’

22. Again these were clearly not the findings of the adjudicator in §26 of her decision, nor for that matter in §25 where she gave her reasons for finding the Applicant’s story not credible. It seems clear to me that the Applicant was again referring to matters which were never part of his own case, and that he was merely citing such submissions from a different case. As such, and having considered the adjudicator’s reasons for rejecting the Applicant’s claim based on her adverse findings as to his credibility as set out in §§25‑26 of the Board’s decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness committed by the adjudicator, nor do I find any reasonably arguable basis to challenge these findings of the Board.

23. As for his complaint under Ground (2) that the adjudicator failed to properly consider or assign appropriate weight to COI and thus failed her duty of joint endeavor to assess his claim, the Applicant stated in his skeleton submissions:

‘ 25. … the Adjudicator only referred to one source of COI — namely, the World population Statistics website. This source only provided basic information about the city of D haka and could not have assisted the Adjudicator in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation. It had no bearing on whether I was at risk of political violence from the AL.

26. In the absence of any reference to any COI beyond the aforesaid website (which it is submitted in irrelevant). One can only conclude that the Adjudicator failed to consider any COI whatsoever in the assessment of my Appeal/petition. This was a failure to take into consideration a relevant factor and further a failure in his duty of joint endeavor.

27. In particular, despite I clearly indicating that he feared persecution due to his political views and opinions the Board failed to investigate and/or consider COI related to political persecution in Bangladesh. In particular, Adjudicator placed no weight (nor did he give any reason for disregarding) directly relevant COI that was before the TCAB (provided by the Director or Immigration) which showed the following …’

24. These submissions of the Applicant that the adjudicator failed to properly consider the relevant COI relating to the viability of internal relocation are again factually incorrect and further reinforce my suspicion that he was merely copying them from another case which also involved political rivalry between JEI and AL in Bangladesh but was of wholly different facts, as it is clear from §§44‑45 of the Board’s decision that the adjudicator, having found that the Applicant had failed to establish any real risk of persecution in his home area, simply did not find it necessary to consider the issue of internal relocation alternative at all, and hence she never referred to any COI relating to Dhaka as claimed by the Applicant.

25. As such, and given her finding against the Applicant’s claim of fear of risk of persecution in his home district as stated above, the adjudicator was in my judgment certainly entitled to find it unnecessary to consider the alternative of internal relocation in the Applicant’s case. In the premises I do not find this complaint of the Applicant arguable at all for his intended challenge.

26. As for his last complaint under Ground (3) that the adjudicator made mistake of fact and/or failed to take into consideration of the risk of harm emanates from his political opinion, the Applicant stated in his submissions as follows:

‘ 29. From §§13, 23, 28 and 33 of the Decision, it is evident that the Adjudicator considered the basis of my Claim to be the ‘grudge’ harbored by AL and according. Throughout the Decision he consistently attributes my fear solely to the incident of the 2001, 2014 & 2018 election.

30. However, I was fear of harm emanates from my membership of the JEI and the risk of harm at the hands of AL members with the confrontation on Election Day merely being a triggering event.

31. By limiting the basis of Claim in this way. The Adjudicator asked myself the wrong question in the assessment of risk and failed properly assesses the risk of harm from the AL as an opposing political party in the context of political violence in Bangladesh.’

27. For the same reasons again it is clear from the Board’s decision that the adjudicator never referred to any ‘grudge’ harbored by AL against the Applicant either in those paragraphs or anywhere else in the decision at all, and that it was never even the Applicant’s own case that there was any such ‘grudge’ from AL or its supporters harbored against him.

28. Nor, for that matter, is it his case of fear of harm from AL due to his political opinion which was again never his case whether as stated or implied in his claim. There is simply no evidence from him either before the Director or the Board of any threats of harm emanated from his political opinion for the adjudicator to take into account or consideration in assessing the risk of future harm from AL upon his return to Bangladesh.

29. The fact is that the Applicant’s claim of fear of political persecution was rejected by the Board essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim by the adjudicator during his appeal hearing, and in the absence of any error or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find this complain of his reasonably arguable either.

30. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

31. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

32.     For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

D.      This appeal

10.  The applicant filed a Notice of Appeal on 24 July 2020 against the Deputy Judge’s Decision. He stated he had complained to the authorities that there was a lack of clarity and transparency in the bundle.  He alleged that the Deputy Judge had wrongly dismissed his application on the following basis:

“ the judge dismissed my claims because ‘it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly, He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood it.” [sic]

11.  He stated that although an interpreter was arranged for him before the Board, the bundle was not read to him prior to the oral hearing.  According to him, he relied heavily on the interpreter but had no means of finding out if the interpretation was correct.  He also said, however, that so far his words had always been wrongly interpreted, and a lot of words were lost in translation.  He said he did not wish to clarify further to the Board because he had reached a point of frustration in having to explain for things that he had never said.

12.  In his skeleton argument for this appeal lodged on 11 December 2020, the applicant claimed there were several errors in the Board’s Decision, alleging procedural impropriety or unfairness, and irrationality.  He complained that the Deputy Judge had fallen short of the standard of “rigorous examination and anxious scrutiny” in considering the Board’s Decision. 

13.  In particular, the applicant said that the Board had erred in disregarding the certification he submitted which confirmed his position as President of the JEI local committee in Kamalgonj, as the Board gave inadequate reasons, wrongly relied on the prevalence of inauthentic documents from Bangladesh, and failed to consider the certification fairly. 

14.  Further, the applicant argued that the Board was wrong to characterise the alleged circumstances of the applicant’s detention as implausible.

15.  He also said that the Board relied on out of date country of origin information (“COI”) and failed to consider the COI he submitted and dated past July 2016.

16.  At the hearing, the applicant confirmed that he had nothing to add to what had already been set out in the written materials.

E.  Discussion

17.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14, and may be summarized as follows.

18.  First, 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.  While the court in non‑refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board having regard to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risks of harm, state protection and viability of internal relocation are matters 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, procedural unfairness or irrationality in the decision of the Board.

19.  Secondly, an appeal against the refusal of leave by a judge of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge has made errors of law or has failed to take into account relevant matters already placed before the court, or that his decision is otherwise plainly wrong.

20.  Thirdly, in an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it were a fresh application for judicial review.

21.  In light of the above, it is incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing his application.

22.  Bearing these principles in mind, we now turn to consider the grounds of appeal.  First, the ground stated in the applicant’s Notice of Appeal is misconceived.  The Deputy Judge simply did not make the finding or comment in relation to the interpreter as asserted in the Notice of Appeal. This complaint is therefore groundless.  Further, the quality of the interpretation at the hearing before the Board is immaterial as the applicant chose simply to confirm the evidence in the bundles and not to give oral evidence before the Board (paragraph 23 of the Board’s Decision).  Nor did the applicant raise that issue in his Form 86 or in his submissions at the hearing before the Deputy Judge on 23 January 2020.  This is therefore not a viable ground for challenging the Board’s Decision or the Deputy Judge’s Decision.  In any event, it has been repeatedly emphasized that the high standard of fairness required by law does not entail interpretation services being made available to an applicant at any time he desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264, §20; Re Gurung Sagar [2019] HKCA 658, §12.

23.  The arguments in the applicant’s skeleton argument are equally without merit.  The allegation that the Deputy Judge failed to adhere to the standard of “rigorous examination and anxious scrutiny” when reviewing the Board’s Decision is simply a bare general assertion without any particulars or elaboration as to how this applied in his case. As such it is not a viable ground of appeal against the Deputy Judge’s Decision. 

24.  As to the point in the skeleton argument about the certification which allegedly showed the applicant’s position as President of the JEI local committee at Kamalgonj, we find the argument incomprehensible because from the Director’s Decisions and the Board’s Decision it does not appear that there was any such certification supplied by the applicant as documentary evidence in support of his claim.  The documents he put forward were listed in paragraphs 12 of the Director’s First Decision and paragraph 21 of the Board’s Decision, and the alleged certificate was not there.  Nor did the Board’s Decision say what the applicant claimed (in paragraph 18 of the skeleton argument) it said, in relation to the authenticity of any such certificate.  Paragraph 20 of the skeleton argument says that the certificate was produced to confirm the applicant’s role with the BNP – an allegation that is unintelligible.

25.  Likewise, the applicant’s argument about the Board’s mischaracterisation of the evidence regarding his detention is again incomprehensible as the Board did not say what the applicant said it did.

26.  As for the argument about COI, as can be seen from the Deputy Judge’s Decision, the point raised in the skeleton argument is wholly different from the one made to the Deputy Judge.  There is no record that the applicant submitted any further COI to the Board other than the documents referred to in paragraph 21 of the Board’s Decision.

27.  Further, these arguments have only been raised in the skeleton argument for this appeal.  It is trite that new arguments directed against the Board which have not been canvassed in the Court of First Instance would not generally be entertained by the Court of Appeal: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at §12; Re Md Iqbal [2019] HKCA 912 at §13(3); Re Sudimah [2019] HKCA 1030 at §12(3); and Re Marshall Bill O [2019] HKCA 1031 at §13(3).

28.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions and can see no error of law, procedural impropriety or irrationality. There is no basis to disturb the Deputy Judge’s conclusion that the intended judicial review has no reasonable prospect of success.

29.  For these reasons, the appeal is dismissed.