RE ILIAS MOHAMMAD

CACV 416/2018

[2018] HKCA 1002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 416 OF 2018

(ON APPEAL FROM HCAL 995/2017)

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J U D G M E N T

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Hon L Chan J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 24 August 2018 in HCAL 995/2017 refusing leave to the Applicant to apply for judicial review against the decision of the Torture Claims Appeal Board dated 17 November 2017 (“the Board”).

Background

2.  The Applicant is a national of Bangladesh.  He last entered Hong Kong illegally on 13 November 2012.  He lodged a non-refoulement claim on the ground that if he should return to Bangladesh, he would be harmed or killed by members of an extremist group in Bangladesh (“the extremist group”) and by the local police for being involved in that party.  That party has been banned as illegal in Bangladesh.

3.  The Applicant’s claim is essentially that[1]:-

3.1. He was a member of an extremist group;

3.2. He was tortured in the past by the Bangladesh authorities;

3.3. His mother was beaten by the authorities till her death;

3.4. His wife and children have deserted him;

3.5. If he is repatriated, he will face torture and death.

4.  The details of the Applicant’s claim have been summarized by the Judge at [1] to [5] of the CALL-1 Form.

5.  In gist, the Applicant is a national of Bangladesh who last entered Hong Kong illegally on 13 November 2012.  He was arrested by the police on the same day and referred to the Immigration Department for investigation.  He lodged a non-refoulement claim on the ground that if he should return to Bangladesh, he would be harmed or killed by members of the illegal Purbo Bangla Communist Party ML-Jonojuddho/Janajuddha (“PBCP-J”) and by the police for being involved in that party. That party has been banned as illegal in Bangladesh.  He has since been released on recognizance pending the determination of his claim.

6.  The Applicant was born and raised in Khulna, Bangladesh.  He is 55-year-old.  After leaving school, he engaged in a trading business in Boyra, Khulna.  He joined PBCP-J involving mainly in their propaganda activities.  He got married and formed a family.  In 1998, he started working as a manager of a motor bus owners’ association in Khulna.

7.  He said there was an occasion when he sold two tickets for the same numbered seat.  That caused a dispute.  The dispute was resolved by one Bilal Haque for him which saved his job.  He then came to know Mr Haque well and eventually joined his party, the PBCP-J (which was banned since the 1970s.  He held the position of Propaganda Secretary in his party.  The top leader of the group was killed by the police in late 2004 and the group splintered into different groups.  Some of them engaged in illegal activities including robbery, killing and extortion of money.  In February 2005, there was a bomb blast.  He not involved in the blast, but was assigned the task of leading the cadres to safety.  In late 2005, Mr Haque was killed by a rival group when he complained against the illegal activities.[2]

8.  Fearing that he might become involved in the internal strife or of being pursued by the police, the Applicant started to stay away from the party or its activities.  When other members became suspicious of him and started to threaten him, he felt that it was no longer safe for him to be in Bangladesh.  He therefore fled on 4 July 2005 to China, and from there to Hong Kong on 9 July 2005.  He then lodged a refugee application with the United Nations High Commissioner for Refugees.  The application was later rejected.  He was repatriated to Bangladesh in 2012.

9.  Upon returning to Bangladesh, he discovered that his wife had divorced him.  He therefore stayed at various places of his friends. 

10.  One day in August 2012 when he was visiting his mother in Ilias Villa, Hafiz Molla Sarani, Chhoto Boyra, Sonadanga Khulna, he was ambushed by the Rapid Action Battalion (“RAB”) of the police and was knocked unconscious.  After regaining consciousness in the hospital, he learnt that his mother was killed in the raid.  He was then taken to the RAB headquarter and interrogated for days about his involvement in PBCP-J.  He was then charged for being involved in a banned organization and was remanded in detention by the Khulna Court for more than 20 days before he was bailed out by his lawyer.

11.  Upon his release on bail, he feared that other members of PBCP-J would still be going after him and, as he did not believe that he would get a fair trial in Bangladesh, he applied for a new passport and left Bangladesh in November 2012 for China again.  He sneaked into Hong Kong and lodged a non-refoulement claim with the Immigration Department on 16 November 2012[3]. He was then represented by the Duty Lawyer Service which assisted him to complete a Non-refoulement Claim Form (“NCF”).

The Director’s Decision and the Director’s Further Decision

12.  The Director of Immigration (“the Director”) decided against the Applicant’s torture claim on 2 September 2016.  The Director’s decision covered the Applicant’s torture risk[4], BOR 3 risk[5] and persecution risk[6].

13.  The Director made a further decision dated 8 June 2017 rejecting the Applicant’s claim based on BOR 2 risk[7].

The Board’s Decision

14.  The Applicant appealed the Director’s first decision to the Board on 13 September 2016. After a hearing held on 28 September 2017, the Board dismissed on 17 November 2017 the Applicant’s appeal against both decisions of the Director dated 2 September 2016 and 8 June 2017.

15.  The Board was of the view that the determinative issue in the Applicant’s appeal was whether or not he was a member of his extremist group as he alleged.  The Board did not accept uncritically all claims of the Applicant.  It did not accept claims that were inconsistent with independent evidence regarding the situation in Bangladesh[8]. The Board found that the Applicant could not answer the simplest of questions, such as when he joined the extremist group, what motivated him to join, or what procedure he had to follow for him to join.  The Applicant failed to give a coherent narrative of how he became a member of the group[9]. He could not give a coherent account of how Mr Haque would have been able to intervene with the management of the bus company.  He gave the Board the impression that his knowledge of the activities of the extremist group came from reading it in the media and not from his personal experience.  He was not aware of the clashes between the extremist group with a Muslim group in 2004[10]. He could not recall at the hearing before the Board that there was the bomb blast in February 2004 and denied that he had led the cadres to safety after the blast[11]. He also denied at the hearing that he had been the Propaganda Secretary of the group[12]. He resiled at the hearing his previous claim that he had to provide written reports after each party meeting[13]. There were other inconsistencies in the Applicant’s case that made him an incredible witness[14]. The Board held that the Applicant was never a member of the alleged extremist group[15]. There was no real risk of harm, torture or persecution if he was refouled[16].

Decision of the Judge

16.  The Applicant filed on 1 December 2017 a Form 86 with supporting affirmation seeking leave for judicial review against the Board’s Decision dated 17 November 2017 and the two decisions of the Director dated 2 September 2016 and 8 June 2017. 

17.  The Applicant put forward the following grounds for judicial review the form 86 and repeated them in his supporting affirmation:

(1) The Board was in breach of procedure of fairness in that it had unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement.

(2) The Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense or was a result of procedural errors or unfairness. 

(3) The Board had failed to meet the greater care and duty owed to an unrepresented claimant. 

(4) After he had filed his non-refoulement claim on 16 November 2012, there was unreasonable delay in the process of his claim so that he was unable to relate evidence from Bangladesh to support his appeal because he had no connection with anyone in Bangladesh. 

(5) He was only served with an English appeal bundle on 21 September 20176 when the hearing of the appeal was held on 28 September 2017.  He was confused as to what was happening in the appeal hearing and the Board had no idea about the social, economic and political condition in Bangladesh. 

(6) The Board and the Director had misdirected themselves on the law, failed to conduct sufficient research and inquiry on state due diligence obligation under BOR 2, BOR 3 and torture risks and relied on source of news article which was not officially recognized or was hearsay.

18.  The Judge dismissed the application for leave for judicial review on 24 August 2018.  The Judge, after summarizing the background of the case and the decisions of the Director and the Board in the CALL-1 Form, gave the following reasons at [11] – [16] for his refusal to grant leave:

“11. On 1 December 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward the following grounds for his intended challenge:

(1) that the Director and the Board had unlawfully fettered their discretions by rejecting his claim and dismissing his appeal on the ground that he did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3) that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or are the result of procedural errors or unfairness; and

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

12. These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decision, or in what way did the adjudicator act in a procedural unfair manner, or what procedural errors had the Board committed in its decision, or in what way did the Director or the Board fail to meet the care and duty owed to the applicant. None of these assertions were explained or elaborated with any particulars or specifics by the applicant at all.

13. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby giving him insufficient time to prepare for his appeal.

14. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter from the Director that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier been already made available to him when he still had legalrepresentation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing before the Board he never raised any issue with the hearing bundle or requested the adjudicator for further time to enable him to properly prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal.

15. The fact that his claim was rejected by the Board on the facts and evidence before it essentially on his credibility for the detailed reasons and analysis set out in its decision, and as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers. With the adjudicator’s clear findings as to the core of the applicant’s claim that he was not a member of PBCP-J or that he has ever been involved with that party or a target of the police or state of Bangladesh, I am unable to find any basis or reason to interfere with the Board’s decision on any of the grounds of the applicant.

16. In the premises and having proceeded to consider 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.”

18. Though the Judge did not specifically deal with the ground of delay in the process of his claim since 16 November 2012 which resulted in his inability to relate evidence from Bangladesh to support his appeal, this ground, however, is one of those that lacks any particulars or specifics or elaborations on how it applied to his case or how he was prejudiced.

Grounds of Appeal

19.  The Applicant filed a Notice of Appeal on 27 August 2018 to appeal the Decision of the Judge.  He stated his grounds of Appeal with citation of some cases as follows: -

19.1.	The Judge failed to adopt a structured approach in assessing the Applicant’s credibility (Nazir Qaisar v Torture Claims Appeal Board, HCAL 546/2017 dated 8 February 2018);
19.2.	The Judge failed to adopt a high standard of fairness in [12] to [15] of his judgment (citing part of a quote in [25] of Y v Secretary for Home Department [2006] EWCA Civ 1223).  The Applicant also argued that he suffered from mental pain because he did not have the assistance of the Duty Lawyer Service to assist him with the hearing bundle for the appeal before the Board;
19.3.	The Judge failed in [10] of the judgment by wrongly adopting the Board’s view that there was a formalized process for the Applicant to join the extremist group when there was none.  The Judge also erred in following the Board’s view that the Applicant would not have been trusted by the extremist group before he became a member of it.

Skeleton Arguments

20.  The contents of the Applicant’s skeleton arguments are essentially the same as his Notice of Appeal with explanations of some factual matters that have already been dealt with by the Director and/or the Board.  The Applicant also argued with the essential findings of the Board on whether he was a member of the extremist group.

21.  The Applicant repeats his submission that the Judge failed to take into account his country of origin in his assessment of whether there was a real risk of torture. 

22.  The Applicant complains that his case was rejected solely based on credibility. 

Discussion

23.  For the purpose of this appeal, we would highlight the following salient propositions concerning appeals in non-refoulement cases[17]:

(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 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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence, country of origin (“COI”) materials, 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, 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 were not raised before the judge.  In determining 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 has made errors of law or failed to take into 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.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

24.  The Applicant complained in the first ground of appeal that the Judge failed to adopt a structured approach in assessment of his credibility.  He referred to Nazir Qaisar v Torture Claims Appeal Board for support.  Deputy High Court Judge Woodcock criticized the Board in [26] to [27] of that judgment for its handling of the COI.  The Deputy Judge further criticized the Board in [28] to [33] for considering outdated COI and not up-to-date COI and in [34] for considering the credibility of the applicant there by reference to answers he gave the Immigration Officer and not by asking the Board’s own questions.  The Deputy Judge also found that the Board’s reasons for finding the applicant unbelievable did not demonstrate a high standard of fairness.

25.  In the present case, the Judge did not make any assessment of the Applicant’s credibility as this task was within the province of the Board (and the Director).  The Judge only considered if the Board had committed any error of law, procedural unfairness or irrationality in arriving at its the decision.  Judging from the Board’s analysis in [100] to [111] of its decision, it cannot be said that the Judge has erred.  This ground therefore fails.

26.  The applicant complained in the second ground that the Judge failed to adopt a high standard of fairness in [12] to [15] of his judgment (citing part of a quote in [25] of Y v Secretary for Home Department [2006] EWCA Civ 1223). 

27.  Keene, LJ in [25] of Y v Secretary for Home Department stressed the importance that the adjudicator should be cautious before finding an account of an appellant to be inherently incredible, because there is a considerable risk that he will be over influenced by his own views on what is or is not plausible as his views will have inevitably been influenced by his own background and by the customs and ways of his society.  The adjudicator should seek to view an appellant’s account of events in the context of conditions in the country from which the appellant comes.  But the learned Judge also said in [26] that an adjudicator should not take at face value an account of facts proffered by an appellant, no matter how contrary to common sense and experience of human behaviour the account may be.  The adjudicator is not expected to suspend his own judgment.  In appropriate cases, he is entitled to find that an account of events is so far-fetched and contrary to reason as to be incapable of belief.

28.  Regarding the Applicant’s complaint in the second ground of appeal, the Judge in [12] of the judgment dealt with all the Applicant’s grounds of appeal against the Board’s decision (save the ground about the hearing bundle).  The Judge took the view that these grounds lacked particulars, specifics or elaborations and were useless.  We cannot see how such reasoning of the Judge can be faulted.

29.  The Judge then dealt with the ground of appeal in relation to the hearing bundle in [13] to [15].  The Judge noted in [14] that most of the documents including the record of his screening interviews and the Director’s decisions should be familiar to him as they had earlier been made available to him when he still had legalrepresentation and his NCF was completed on his own instructions with legal assistance. Furthermore, he at his oral hearing before the Board never raised any issue with the hearing bundle or requested the Board for further time to enable him to properly prepare for his appeal.  The Judge thus dismissed his ground relating to the hearing bundle.  We again cannot see how the reasoning of the Judge can be faulted.

30.  Regarding the third ground of appeal, the Applicant submitted that the Judge failed in [10] of the judgment by wrongly adopting the Board’s view of the existence of a formalized process for him to join the extremist group and the Board’s view that he would not have been trusted by the extremist group before he became a member of it.  The Judge only recounted the findings of the Board in [10] of the judgment:

“10. In its decision the Board formed the view that the applicant is not a witness of truth and that he has fabricated claims in relation to his involvement in politics, that it did not accept that he has ever had any association with the PBCP-J or that he was ever a member of or had ever been involved with the party, or that PBCP-J would have any interest in him,or that he has ever had to hide from the police or the authorities or that his mother died in the manner claimed by him, and concluded that he would not be at risk of any harm from members of PBCP-J or the authorities upon his return to Bangladesh.”

31.  The Judge only had to consider if the Board had committed any error of law, procedural unfairness or irrationality in arriving at its findings.  The Board came to these findings after a lengthy discussion of the Applicant’s case and evidence in [100] to [125] of its decision.  There is nothing to show that the Board has committed any error of law or procedural unfairness or irrationality.  This ground therefore fails.

32.  The Applicant also complains in his skeleton submissions that his case was rejected solely on credibility.  He, however, has not demonstrated why this was plainly wrong (Pang Ketian Sally v Tam Yuk Hung (unreported, CACV 147/2013, 25 April 2014 at para [32]).  He has not provided any particulars or specifics.  This ground therefore fails too.

Decision

33.  In our view, there are no reasonably arguable grounds for leave for judicial review to be granted.  Accordingly, the appeal is dismissed.

34.  We would also point out that, as held in Re Moshsin Ali [2018] HKCA 549 at [31] to [45], the decision of the Director is no longer susceptible to judicial review once an appeal to the Board is pursued by a non-refoulement claimant.  This is because the Director’s decision is superseded by the Board’s decision. Accordingly, it is not open to the applicant to challenge the Director’s two decisions by way of judicial review.