KHAN MD ATAUR RAHMAN v. CHAN LING LING TRACY , ESQ., TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 453/2018

[2019] HKCA 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 453 OF 2018

(ON APPEAL FROM HCAL NO 3 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 7 September 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 5 November 2018, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 12 February 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1984.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh.  He entered Hong Kong illegally on 22 January 2014 and was arrested by the police on the same day.  He was referred to the Immigration Department for investigation and on 25 January 2014, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by members of rival political party Awami League (“AL”) because he was a supporter of the Bangladesh Nationalist Party (“BNP”) and he had clashed with the members of AL at a fight in around 2008/2009.  The applicant also feared that he would be arrested by the police for his involvement in the fight incident.

5.  By a Notice of Decision dated 1 June 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 31 July 2017, the Director rejected his claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearing on 13 November 2017, the Board dismissed the appeal on 22 December 2017.  The Board found that there were implausibility and inconsistencies in the applicant’s account of the alleged attack by the AL people in a fight between AL and BNP over a land dispute.  At the hearing, the applicant produced some documents in support of his assertion that he was charged with false allegations by the police for the fight incident.  After reading the documents, the Board found serious discrepancies in his oral evidence and the documentary evidence produced and did not accept that the applicant was one of the defendants involved in those cases.  Even if the applicant’s case were accepted, there was no evidence suggesting any official involvement, thus state protection, should not be reasonably available to him; and internal relocation would also be a viable option.  Further, on the basis of objective COI on judicial system in Bangladesh, the Board took the view that the applicant would be given a fair trial if he had not absconded.  With the aforesaid reasons, the Board found that the applicant had failed to establish his claims for non-refoulement protection under all applicable grounds.

7.  On 2 January 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In the supporting affirmation filed on the same day, the applicant put forward the following grounds for his intended challenge :

(1)  failing to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)  failing to take into account or putting proper weighton relevant COI, cherry picked COI and put weight on irrelevant COI in the consideration of his claim;

(3)  failing to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)  failing to analyse and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(5)  taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  failing to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  applying the incorrect standard of proof in his decision; and

(8)  lack of legal representation.

THE JUDGE’S DECISION

8.  On 7 September 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [13] – [18] for his refusal to grant leave :

“ 13. 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. 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 mother documents all of which were in English and thereby given insufficient time to prepare for his appeal.

15. 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 that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interview and the Director’s decisions should be well familiar to him and had already been made available to him earlier when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at the appeal 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. In the circumstances I do not find anything amiss arising from the hearing bundle being given to the applicant shortly before his appeal before the Board.

16. As for his last complaint of not being screened by the Immigration Department before his claim under BOR 2 risk was rejected, in the absence of any response from him to their earlier invitation for him to submit any additional facts relevant to his claim under BOR 2 risk, the Director was entitled to assess his such claim on the presentation and evidence already made available to him, and I do not find anything amiss arising from the fact that no further screening interview was arranged by the Director for the applicant. At any rate, the applicant never raised any such issue when he attended his oral hearing before the Board almost four months later, nor did he then submit any additional facts relevant to his claim under BOR 2 risk. Even now in his leave application including an oral hearing before me that he did not do so. In the circumstances I do not find any merit in this complaint of the applicant.

17. 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. 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.”

THE APPEAL

9.  The applicant filed the Notice of Appeal filed on 13 September 2018 and in his supporting affirmation filed on the same day, he set out following grounds of appeal :

“ (1) [The Judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) [The Judge] failed to provide detailed reason in support of his decision.”

10.  Exhibit A annexed to the applicant’s supporting affirmation contained various grounds for judicial review against the Board. They were canvassed at the lower court hearing and were duly rejected by the Judge.

DISCUSSION

11.  We agree with the Judge’s comment at [13] of the CALL-1 Form that the applicant’s allegations that the Board had failed to take into account of relevant COI; or that it had acted in a selective manner or had relied on irrelevant COI were vague and without any particulars or elaborations.  We take the view that the Board had carefully and thoroughly considered the relevant COI which were in support and against the applicant’s case and had rightly applied them to the facts of the applicant’s case.  We do not see any error of law or principle in the Board’s and the Judge’s finding.  Ground 1 is not reasonably arguable.

12.  Ground 2 is a bare allegation unsupported by any reason or argument.  As is apparent from the Judge’s reasons as set out in paragraph 8 above, this allegation is without merit.  The Judge clearly explained the reasons for his decision in those paragraphs of the CALL-1 Form.

13.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.