RE MOHAMMAD TITU

CACV 355/2018

[2018] HKCA 812

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 355 OF 2018

(ON APPEAL FROM HCAL NO. 724 of 2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 18 July 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board (“the Board”) dated 25 August 2017[1] dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 March 2017 rejecting his non-refoulement claim.  The applicant consented to the appeal being heard by a two-judge Court.

2.  The applicant is a Bangladeshi national.  He last entered Hong Kong on 28 December 2004 and was permitted to remain as a visitor until 30 December 2004.  He overstayed and was arrested by the police on 19 March 2009. On 22 March 2009, he submitted a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on the basis that if he were refouled to Bangladesh, he would be harmed or killed by an individual called MD Dalu (“Dalu”) and supporter of the Awami League Party (“AL”) because he had refused to switch allegiance from the Bangladesh Nationalist Party (“BNP”). 

3.  The applicant’s background and the details of his claim were set out in [5] to [7] of the Director’s Notice of Decision dated 28 January 2015 and [2] and [3] of the Board’s decision dated 5 December 2016.  Briefly stated, in 2001, the applicant became the vice-president of BNP in his home district, District Munshiganj.  Thereafter, Dalu and his associates demanded him to switch allegiance and verbally threatened to harm and kill him.  When he went into hiding, Dalu and his associates harassed his family and slapped his brother to make him disclose his whereabouts.  Although reports were made, the police took no action.  Fearing for his safety, he left Bangladesh and came to Hong Kong.

4.  By a Notice of Decision dated 28 January 2015, the Director rejected the applicant’s claim having regard to the torture risk[2], the BOR 3 risk[3] and the persecution risk[4]. The applicant appealed to the Board.  A hearing was held on 8 October 2015.  By its decision dated 5 December 2016, the Board dismissed the appeal. 

5.  By letter dated 28 December 2016, the Director invited the applicant to submit additional information relevant to an assessment of the BOR 2 risk[5].  By letter dated 11 January 2017, the applicant provided to the Director the additional information set out in [5] of the Director’s Further Notice of Decision dated 13 March 2017.  In brief, the applicant stated that he was still targeted by Dalu and his people, who also extorted “protection money” from his wife.  On two occasions in March and June 2016, they attacked the applicant’s wife causing her to become paralysed in the left side of her body.  The police did not file the complaint of the first attack because the applicant’s wife did not pay the bribe demanded.  Having considered the applicant’s case, the Director concluded that the applicant failed to establish the BOR 2 risk ground.  The decision was communicated in the Notice of Further Decision dated 13 March 2017.      

6.  The applicant appealed the Director’s further decision to the Board.  For the reason stated in [8] of the decision dated 25 August 2017, the Board decided it was not necessary to conduct an oral hearing.  Having studied the case, including the additional information provided by the applicant, the Board was of the view that the applicant could not establish a case under the BOR 2 risk ground, and dismissed the appeal.

7.  The applicant filed a Form 86 on 6 October 2017 seeking leave to apply for judicial review of the Board’s decision.  He set out his grounds for judicial review in the supporting affirmation on the same day.  As summarised by the Judge, they are:

(1) Failure to conduct sufficient enquiry into the country of origin information after new information to support a BOR 2 risk claim was made.

(2) Failure to conduct a screening interview when conducting the BOR 2 risk assessment.

(3) Failure to hold an oral hearing in determining the appeal.

8.  At the applicant’s request, an oral hearing was held on 2 March 2018 to hear the leave application.  The applicant attended the hearing and confirmed to the Judge that his intended judicial review was directed only at the Board’s decision dismissing his appeal against the Director’s BOR 2 risk assessment. 

9.  The Judge, having considered the applicant’s proposed grounds for judicial review, concluded that they were unarguable and had no prospect of success, and refused to grant him leave to apply for judicial review.  He set out his reasons in [10] to [12] of the Form CALL-1 dated 18 July 2018, [2018] HKCFI 1584:

10. In the applicant’s first ground he criticises a lack of analysis of Country of Origin information and cherry picking of that information as well as a failure to provide him with an opportunity to provide information. However, these new facts that relate to his wife and child do not relate to him personally nor do they relate to a BOR 2 risk; they would not invoke the protection of BOR 2.  Death sentences imposed, crimes of genocide or a failure by the police or a public authority to know a life is in danger yet fail to take measures to protect is what is envisaged to invoke such protection.  There is no merit in this ground.

11. The applicant’s second and third ground is also without merit. Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  There was no necessity for the Director to interview the applicant again either.  When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims there were interviews, oral hearings and the applicant was legally represented before the Director.  With the BOR 2 risk claim the applicant did respond to an invitation to submit further information to the Director and clearly the adjudicator took the view and considered overall fairness when he decided the applicant would have nothing useful to contribute by way of being heard again if there was a hearing.

12. 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.

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

10.  The applicant filed the Notice of Appeal dated 31 July 2018 to appeal the Judge’s decision.  We heard the appeal on 6 November 2018.

11.  At the appeal hearing, the applicant sought to put in two new documents to support his case that he held a position in BNP and that he had been attacked in 2003 by AL people.  They are two notarised English translations of what appeared to be two letters dated 14 August 2018 issued separately by two presidents of the BNP in the Munshiganj district.  The first letter (reference no BNP/17) was from Hasanuzzaman Dodul, president of the Upazila area.  It stated that the applicant was a devoted worker of the party who first joined on 10 November 1998 and was promoted to be the vice-president of Upazila, and that he was attacked by a group of local AL members in December 2003.  It also mentioned that the applicant was a victim of the AL and he was compelled to flee the country as a result of the torture and suppression by the AL group.  The second letter (reference no. BNP/18) is from Abdul Hai, president of the Munshiganj district.  It also mentioned the applicant was an active BNP member and that after he became the vice-president of Upazila in 2001, members of local AL had threatened and attacked him in various ways.  The original of these translations was not produced and the applicant had not been able to give an indication as to where they were.

12.  It is clear law that only in exceptional cases will the appellate court permits new evidence to be adduced on appeal.  This is particularly so with appeals from refusal of leave to bring judicial review against the decisions of the Board and the Director.  This is because evaluation of evidence and assessment of risks are matters for the Board and the Director who are the primary decision makers.  The focus of the court in the exercise of its supervisory jurisdiction is on whether there has been error of law or procedure in the decision and fairness of the process by which the decision is arrived at. 

13.  The applicant must satisfy all the three requirements set out in Ladd v. Marshall [1954] EWCA Civ 1, namely, (i) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (ii) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive; and (iii) the evidence must be such as is presumably to be believed, or, in other words, it must be apparently credible though it need not be incontrovertible.

14.  On the first requirement, the applicant did not explain why he could not, with reasonably diligence produced the new documents to the Director or the Board, or to the Judge in his application for leave to apply for judicial review.  He only said he received the documents recently from his family.  As to the second requirement, the applicant had already told the Director and the Board that he was the vice-president of the BNP in his home district.  However, as explained in [19] below, on the account given by the applicant to the Director and to the Board, it is not a case falling within the ambit of BOR 2.  The two documents would not have advanced the applicant’s case under the BOR 2 risk assessment.  In relation to the third requirement, we note that the applicant had never mentioned to the Director or the Board that he had been personally attacked in December 2003 or at all.  The veracity of the assertion in the documents that the applicant had been attacked by AL members in December 2003 is doubtful.  On these analyses, none of the requirements for adducing new evidence as laid down by Ladd v. Marshall is met.  We refuse to admit the documents as evidence in this appeal.

15.  The applicant advanced the following grounds of appeal in his Notice of Appeal:

(1) The Director and the Board failed to discharge their duty to make sufficient enquiries into the country of origin information in contravention of the high standards of fairness. 

(2) The Director and the Board failed to conduct screening interview and oral hearing with regard to his BOR 2 claim. They did not consider the additional information provided by the applicant.

(3) There was no sufficient basis for the conclusion that he would not be at risk or face any difficulty on relocating to other parts in his country upon refoulement.

(4) He has the right to live and as his life would be at risk, his right should be protected and the appeal should be considered as a humanitarian aid.

16.  In his written submission dated 16 October 2018, the applicant, apart from reiterating the above grounds, also made an additional point that there was a failure to consider the concept of extended acquiescence.  The applicant further stated at the hearing that there would be a general election in 2019, and if the BNP returned to power, then he could and would go back to Bangladesh.

17.  We are of the view that all these grounds are unarguable. Firstly, in the Form 86, the applicant only sought to judicially review the Board’s decision dismissing his appeal against the Director’s determination on the BOR 2 risk ground.  Notwithstanding he made reference to the two decisions of the Director and the earlier decision of the Board, the applicant confirmed to the Judge at the hearing of his leave application that he only sought to challenge the Board’s decision dismissing the appeal on the Director’s BOR 2 risk assessment.  In the circumstances, it is not open to him to seek to challenge the decision of the Director at the appeal.

18.  Secondly, the first and second grounds of appeal set out in the Notice of Appeal are repetitions of the grounds for judicial review.  The Judge had given reasons for his rejection of these grounds.  Other than reiterating the grounds, the applicant has not pointed to any error in the Judge’s decision and reasons for it.  We can discern no error in the Judge’s reasons for not accepting these grounds.  There is no basis to disturb the Judge’s conclusion.

19.  Thirdly, the matters raised in the third ground in the Notice of Appeal and the point made in the written submission (namely, internal relocation alternatives and state acquiescence or involvement) are not central to a BOR 2 risk assessment.  The critical point in the decision of the Board (as well as the decision of the Director) on the BOR 2 risk ground is that on the applicant’s own account, including the additional information provided by him, the absolute and non-derogable rights under BOR 2 are not engaged.  The facts relied on by the applicant do not show any risk of death sentence or genocide or a personal and real risk of the applicant being deprived of his life upon his return to Bangladesh.

20.  Finally, on the fourth ground stated in the Notice of Appeal and the oral submission, they do not constitute valid grounds of appeal.  Whether the applicant should be given protection must depend on whether he can make out a case under the applicable grounds.  The Director had previously rejected the applicant’s claim under the torture risk, persecution risk and BOR 3 risk grounds, and the decision was confirmed by the Board. There was no challenge to the decision in the court.  The Director had also rejected the applicant’s claim under the BOR 2 risk ground.  On appeal, the Board concluded that the applicant failed to establish the BOR 2 risk ground.  We agree with the Judge that there is no proper basis to challenge the decision.   

21.  For all the reasons set out above, there is no merit in the appeal.  Accordingly, we dismiss the appeal.