MD BATEN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 389/2018

[2018] HKCA 989

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 389 OF 2018

(ON APPEAL FROM HCAL 730/2017)

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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):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 8 August 2018 (published as [2018] HKCFI 1743) refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the adjudicator of the Non‑refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 29 September 2017 dismissing the applicant’s appeal/petition against the decisions of the Director of Immigration (“the Director”) dated 10 August 2016 and 16 August 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He allegedly arrived in Hong Kong on 20 June 2007 illegally and was arrested by the police on the same date.  He raised his torture claim on 30 July 2007.

3.  Upon the commencement of the unified screening mechanism on 3 March 2014, the applicant’s torture claim was taken to be a non‑refoulement claim and to be assessed under all applicable grounds.

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be ill-treated, tortured and persecuted by the members of Awami League (“AL”) and the Rapid Action Battalion (“RAB”) because of his political affiliation with the Bangladesh Nationalist Party.  The factual background of this case was summarized in [5] – [8] of the judge’s decision. 

5.  In short, the applicant was born in 1973.  He had very little education.  He is married with one child but has lost touch with his family. He became a member of the Bangladesh Nationalist Party (“BNP”) in the late 1980s.  He participated actively in BNP activities, rallies and electioneering.  The AL came into power in 1997.  Some neighbours told him that the AL planned to attack him because of his support for the BNP.  He therefore fled alone to India in 1999 actively. 

6.  He obtained an Indian passport with a false identity.  He stayed there until the end of 1999 and returned home in 2000 because he missed his family too much.  His BNP fellow members sent him messages saying that he was still wanted everywhere in Dhaka and even in his parents’ home.  He therefore did not return to his previous home.  He stayed in various places with relatives near his home to avoid the AL.

7.  He went back to India in the beginning of 2001 because he was afraid to stay in Bangladesh.  He remained in India until July 2002.  He first arrived in Hong Kong on the strength of an Indian passport under the name of Shafeeq Mohammad.  He was arrested by the police in June 2004 and was deported back to India on 23 August 2004.  Up until then, his BNP friends told him that the AL were still looking for him in and around his home village. 

8.  He went back to Bangladesh and applied for a Bangladeshi passport in his current name. From October 2004 to December 2005 he travelled between Bangladesh, China and Hong Kong on business and visited Hong Kong on 26 occasions. 

9.  He had two very good friends from the BNP.  He attended party meetings with them.  It transpired that they were notorious criminals and targets of the AL.  The AL filed a case against all him and his two friends with the police accusing them of conspiring to commit crimes.  His two friends were shot dead by the RAB in about 2004 to 2005.  He was told that they had implicated him said that he was the mastermind of the crimes before they were shot dead.  He tried to convince an AL member of Parliament of his innocence but was told to pay 4 million takas for AL to withdraw his name from the case.  He could not afford to pay the sum.  He was sure that the RAB would target him and he had to leave Bangladesh immediately.  He has since been told by his family that the proceeds of crime owed by his two friends is 20 million takas and the AL said that he had to pay this sum before he could return home safely. 

10.  He allegedly arrived in Hong Kong on 20 June 2007 illegally and was arrested by the police on the same date.  He was convicted of the offence of remaining in Hong Kong without authority of the Director and was sentenced to 12 months’ imprisonment.  He raised his torture claim on 30 July 2007.

11.  The Director assessed the applicant’s claim on all applicable grounds, namely the BOR 3 risk[1], the BOR 2 risk[2], the persecution risk[3] and the torture risk[4], and determined the claim against the applicant.

12.  The applicant lodged an appeal/petition with the Board.  After having an oral hearing on 6 September 2017, the Board dismissed the applicant’s appeal/petition.

The judge’s decision

13.  The applicant filed his Form 86 on 6 October 2017, seeking leave to apply for judicial review against the Board’s decision.  The applicant advanced 4 general grounds for seeking relief in his Form 86:

(1)   The Board had unlawfully fettered its discretion by refusing the applicant’s appeal;

(2)   The Board acted in a manner that was procedurally unfair;

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

(4)   The Board failed to meet the greater care and duty owed to the applicant.

14.  He also advanced three specific grounds in his Form 86:

(1)   He was given the hearing bundle for use at the hearing before the Board only six days prior to the hearing.  There was insufficient time for him to prepare for the hearing because of his limited skills in English and he did not have enough time to find an affordable translator.  He was thus confused at the hearing;

(2)   He answered all the questions honestly and was aggravated by the finding that questioned his credibility; and

(3)   The Board relied on a source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated considering the dramatic change in Bangladesh.  The lack of credible source of information has resulted in them making groundless speculations that it is safe for him to return to his country of origin.

15.  The applicant also filed an affirmation in support of his leave application.  He basically repeated therein the 3 specific grounds in his Form 86.

16.  After having an oral hearing on 13 March 2018, the judge refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in [14] – [19] of her decision:

“14. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim and evidence and validated his findings. The applicant’s complaints against him and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

15. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

16. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at (13) said that.

‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.’

This adjudicator did not doubt his credibility; he did not find his evidence inconsistent but he placed no weight on his evidence because his case was entirely made up of hearsay evidence, without any direct evidence. He explained that his evidence was not inadmissible per se but he was not in this situation placing any weight on the applicant’s evidence because of the “multiplicity of his allegations on which the applicant’s case relies.” He gave a good reason for that finding, the TCAB had a rational basis to find he placed no weight on the applicant’s evidence. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

17. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out‑of‑date. However, there are no particulars supplied by the applicant to support this ground. In view of his finding that there was no weight he could place on the applicant’s evidence, there was no need for him to go into such information in detail. I find no merit in this ground.

18. 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.

19. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.”

The appeal

17.  The applicant filed his notice of appeal on 13 August 2018.  He stated in the notice of appeal that:

“… [he] 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.” (sic)

18.  In compliance with the directions of the court, the applicant lodged his written submissions on 2 November 2018. He referred to the cases of ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005]1 HKLRD 289 and submitted that high standards of fairness are required in determination of torture claims. 

19.  We heard the appeal on 18 December 2018.

General principles

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

(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, 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 time limit in Order 53, rule 4(1) of the Rules of the High Court; Cap 4A.   

Discussion

21.  In the present case, after rigorous examination and anxious scrutiny, the judge did not find any legal error or procedural unfairness in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the Board’s findings.

22.  By submitting that he will face hardship if he were to return to his home country, the applicant is in effect inviting this Court to revisit the assessment made by the Board.  As we have explained, this is not a permissible course on appeal.

23.  Plainly, the applicant has failed to advance any effective argument that can justify a reversal of the judge’s decision. 

24.  Having considered the materials available before us, as well as the submissions of the applicant, we cannot find any error of law or procedure in the proceedings before the Board, or any reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

25.  For these reasons, we dismiss the appeal accordingly.