RE HOSSAIN MOHAMMED NUR

CACV 236/2019

[2019] HKCA 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 236 OF 2019

(ON APPEAL FROM HCAL 1190 OF 2018)

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Hossain Mohammed NUR, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 23 May 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 20 June 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 2 November 2016 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 33, is a fear of being attacked or even killed by members of the Awami League (“AL”), particularly by 2 individuals named Kana Babu and Samad, if he should return to Bangladesh. Such alleged fear is said to arise out of the following detailed circumstances:

(1)  The applicant was born in Kanu Nagar, Hajaribagh Police Station, Dhaka, Bangladesh.

(2)  He became a member of the Bangladesh National Party (“BNP”) in 2009 and, as such, attended meetings, rallies, processions and lectures of the BNP.

(3)  In one evening towards the end of 2012, at about 7:30 pm, while the applicant was drinking tea alone at a tea shop at Beribadh in Hajaribagh, he was grabbed by the collar and dragged out of the tea shop by 4 persons, including Kana Babu and Samad whom the applicant recognised and knew. He had seen them working for the AL and moving around with senior AL leaders. The applicant also described them as criminals as they were also always involved in criminal activities. The applicant did not know the other 2 assailants but assumed they were also AL member because they came with Kana Babu and Samad. 

(4)  The applicant struggled but could not break from the clutches of his attackers who pulled him to the back of the tea shop while pushing, punching and kicking him at the same time.  They threatened the applicant, “Your future is very bleak. You will not be able to survive for long.” The attack lasted for about 7 to 8 minutes. The attackers then left and the applicant went home. He sustained bruises on various parts of his body.  He took some painkillers but did not seek medical treatment because he did not feel that he needed any. He recovered in around 3 days.

(5)  The applicant believed that he was threatened and attacked by the AL because he was a very active member of the BNP and always took the front position in all its political activities. He had told a senior person of the BNP about the attack. That person just advised him to be cautious and to stay away from Kana Babu and Samad.

(6)  Then, about 3 to 4 months later (i.e. around March/April 2013), in one afternoon after 5 pm, about 8 people including Kana Babu and Samad intercepted the applicant and his friend (who had just attended a meeting of BNP members and workers at the Hajaribagh market) at a deserted lane. Without uttering a word, they beat the applicant and his friend up with wooden sticks, metal chains and stumps. The applicant and his friend screamed in pain. People came out from the nearby places, whereupon Kana Babu and Samad and their associates left.

(7)  The applicant declined to be taken to a pharmacy. Instead, he asked to be taken home in a cycle rickshaw. It took the applicant around 7 days to recover from the injuries he sustained in this incident. 

(8)  The applicant consulted Zia, his friend and senior in the BNP.  Zia, in turn, called Sentu, the applicant’s local leader and a senior leader in the BNP. Sentu advised the applicant against calling the police or leaving his home. He indicated he would talk to Bottu Shahin, another BNP leader on the upper level.

(9)  Sentu, however, did not get back to the applicant, which led him to believe that the BNP, being not in power, could do nothing for him.

(10)  The applicant went into hiding at his aunt’s house in Savar, Dhaka City for about 4 months in the 2^nd half of 2013.  Although his stay in Savar was uneventful, the applicant said he was in constant fear of being attacked anytime.

(11)  While in Savar, Zia informed the applicant that both Sentu and Bottu Shahin had fled the country. Zia advised the applicant to do something for his own safety. Zia himself had subsequently gone to stay with his cousin in India. The departure of these party seniors left the applicant feeling very helpless.

(12)  The applicant secretly returned home after about 4 months in Savar. He stayed at home and did not resume his trading business to avoid detection by the AL.

(13)  However, one day in about February/March 2014, Kana Babu (armed with a pistol on his waist) spotted the applicant when he happened to be out of his house. While the applicant was preparing to flee, 4 of Kana Babu’s subordinates came at him in response to Kana Babu’s call. The applicant immediately took off. He managed to escape unharmed. He went into hiding again, this time in a friend’s house in the Tejgaon area of Dhaka City, where he remained uneventfully until he left Bangladesh.

(14)  The applicant became convinced that it would not be safe for him anywhere in Bangladesh where Kana Babu could continue to target him.

(15)  The applicant did not report any of his said 3 encounters with Kana Babu and Samad and their associates to the police which, he assumed, would side with the AL as the ruling party.  Indeed, the applicant said that the police in Bangladesh would kill people by firing at opposition party rallies. He was also afraid that a complaint to the police would provoke the AL to take further actions against him.

(16)  Nor did he think it would help for him to relocate (to say Chittagong or Sylhet) as the AL had extensive networks, political connections and people everywhere and could locate him anywhere in the country.

Arrival in Hong Kong and lodgment and processing of NRF Claim

3.  The applicant left Bangladesh for Kunming, China on 18 June 2014. He transferred from Kunming to Shenzhen, from where he then entered Hong Kong illegally by boat on 23 June 2014. He was arrested on the same date. He raised the NRF Claim on 30 June 2014. On 2 February 2016, he lodged his completed non-refoulement claim form (“NRF Claim Form”).

4.  In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 27 October 2016 with the applicant, who then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decision

5.  The Director’s Decision covered all applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

6.  The Director found the NRF Claim to be unsubstantiated for reasons which can be summarised as follows:

(1)  First, the risk of harm to the applicant upon his return to Bangladesh would be low. 

(a)  The incidents relied upon were infrequent and caused relatively minor injuries. Such past ill-treatments did not attain the requisite minimum level of severity.

(b)  They also showed that those the applicant regarded as his enemies had no real intention to harm, let alone kill him.

(c)  Nor was there any reason why anyone from the AL would target the applicant. He was only a low level supporter of the BNP. He did not have a political profile that would make him a political foe to be reckoned with.

(d)  Nor was there evidence that any of the assaults on the applicant had been instigated, authorised or acquiesced in by the national government of Bangladesh.

(2)  Second, the applicant himself had refrained from seeking protection from the police or other authorities of Bangladesh on the assumption that they would not entertain him. However, there is nothing to show that the police would not have offered him protection if they had been approached. There is objective country of origin information (COI) showing that critical reforms have been and are ongoing in Bangladesh with indications of positive results in recent years in the protection of the citizens of Bangladesh irrespective of background or political connection and that the judiciary in Bangladesh also serves to ensure the accountability of law enforcement agencies and to uphold the rule of law. The availability of state protection would further lower or even negate the level of risk (if any). 

(3)  Third, reasonable internal relocation alternatives are available in such a vast and populous country as Bangladesh. It is not unduly harsh or unreasonable for an able-bodied adult like the applicant to relocate to another city such as Chittagong or Sylhet.  There is no evidence that his claimed enemies can or will mobilise the power or resources necessary to locate him throughout Bangladesh.

Appeal to Board and Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Board on 11 November 2016.

8.  The Board conducted a rehearing of the NRF Claim on 15 January 2018 at which the applicant, through a Bengali interpreter, testified and answered questions by the Board.

9.  The Board’s Decision dismissed the appeal on all 4 applicable grounds for non-refoulement protection.

10.  The Board found inexplicable “obvious discrepancies” in the applicant’s evidence of the events that formed the basis of his fear of risk, which rendered his claim implausible. The Board also considered his evidence unreliable because of the unreasonable nature of his claim. That being the case, the applicant had firstly failed to establish the substantial grounds required for non-refoulement protection under the Ordinance.  Secondly, the ill-treatment relied on did not attain the minimum degree of severity to engage BOR3. Thirdly, the applicant had not proved any “well-founded fear” for the establishment of persecution risk. He did not hold a leadership position in the BNP or have any political influence in his home area for him to be targeted. Fourthly, the Board was not satisfied that the applicant would face a real risk or danger against his life in Bangladesh.

11.  The Board also came to the same conclusions on the availability of state protection and reasonable internal relocation options as the Director.

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1190/2018 on 25 June 2018 (“Form 86”) and the supporting affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds which were summarised by the Judge at [10] of the Form CALL-1 dated 23 May 2019, [2019] HKCFI 1279 (“Form CALL-1”) as follows:

(1) that he was not legally represented for the appeal before the Board;

(2) that the hearing bundle, which was in English without translation, was delivered to him only shortly before the appeal hearing; and

(3) that the Board relied upon out-dated hearsay information.

13.  After hearing the application in open court at which the applicant was present, the Judge refused leave. His reasons can be found in [11]-[14] of the Form CALL-1:

“11. Since the Board refused his appeal on the ground that the applicant was unable to establish his facts as he alleged, the applicant has no factual basis for his non‑refoulement claim.

12. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (1) fails.

13.  Ground (2) fails as he confirmed at the hearing before me that he had no complaint against the Immigration officer or the Adjudicator and that he had no problem at the appeal hearing. He had not identified the problem himself in his affirmation.

14.  As to Ground (3), the applicant was unable to identify which part or parts of the Country of Origin Information or news are outdated and the problem with them. This ground therefore fails.”

Appeal to Court of Appeal and grounds of appeal

14.  By a notice of appeal filed herein on 29 May 2019, the applicant appealed against the refusal of leave for judicial review on this ground (“Ground”):

“the Plaintiff will face hardship if he is to return back to his home country and that the [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.”

15.  On 15 July 2019, the applicant lodged his skeleton submission, which referred to (1) ST v Director of Immigration (sic)[5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 to remind this court of the high standards of fairness that are required in the adjudication of torture claims and the rationales for such requirement.

16.  The applicant appeared in person at the hearing of the appeal on 27 August 2019. In further support of his appeal, the applicant merely stated that his family in Bangladesh, particularly his uncle, have been negotiating with Kana Babu and Samad on his behalf with a view to settling the dispute between them and that he needs to stay in Hong Kong for another 3 to 4 months for the settlement to materialise.

Court of First Instance’s role in judicial review in non-refoulement claim

17.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

18.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met. Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, the Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

Discussion

19.  In light of the above principles, it is incumbent upon the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in refusing leave for judicial review of the Board’s Decision.

20.  The Ground appears to be a mere repetition of the third ground placed before the Judge and is directed at the Board’s Decision, not that of the Judge. In any event, the Judge dealt with the same in [4] of the Form CALL-1. The applicant has not identified, and we do not see, any fault in the Judge’s reasoning.

21.  As summarised in paragraphs 6, 10 and 11 above, the NRF Claim failed on the facts at both stages of the Unified Screening Mechanism.  The questions whether the applicant would be at risk of life or torture if he is refouled to Bangladesh and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact within the province of the Board (after the Director). The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact against him. 

22.  The applicant did not in the notice of appeal or his submission (whether written or oral) before us identify any error of law by the Judge, any relevant matter that she had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any.

Disposition

23.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.