RE MD MAHABOUR ALIAS MAHABUB

CACV 509/2021

[2022] HKCA 331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 509 OF 2021

(ON APPEAL FROM HCAL 2864 OF 2018)

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JUDGMENT

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

The appeal

1.  This is an appeal against the order made by Deputy High Court Judge K W Lung (“Judge”) on 5 November 2021 (“Judge’s Decision”), refusing to grant the applicant leave to apply for judicial review.  The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 20 November 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“Claim”) by a notice of decision dated 15 February 2022 (“Director’s Decision”).

Basis and allegations in support of Claim

2.  The basis of the Claim made by the applicant, a national of the Bangladesh, is a fear of being harmed or even killed by the family and people of Rashid Sarker (“Rashid”), his late paternal cousin with whom the applicant had a dispute over a piece of land (“Land”) in their native village.

3.  The circumstances giving rise to such fear have been set out in paragraphs 12 to 53 of the Director’s Decision; paragraphs 16 to 26 of the Board’s Decision and in [4] and [5] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 3276 (“Form CALL-1”).

4.  Briefly:

(1)  Rashid and his entire family were member of the Bangladesh National Party and were close to the chairman of the village council.

(2)  Rashid owned the Land.

(3)  In around late 2005 or early 2006, Rashid agreed to sell the Land to the applicant.

(4)  The applicant had paid half of the agreed price as deposit.

(5)  The remaining half would be payable when Rashid produced the ownership papers.

(6)  However, instead doing so, Rashid avoided the applicant.

(7)  The police further withheld the land search report from the applicant.

(8)  The applicant asked for, but Rashid refused to make, repayment of the deposit.

(9)  Verbal altercations followed every 2 to 3 days for around 2 to 3 months.

(10)  Then, in around February/March 2006, a physical fight broke out on the Land.  Rashid came with 20 to 25 people whereas the applicant had only 10 to 15 people on his side.    

(11)  One of the applicant’s supporters hit Rashid on the head.

(12)  Rashid’s family complained to the Dhunot police station.

(13)  Days later, the applicant was told that Rashid had died and his family had filed a case against him alleging that he had killed Rashid.

(14)  The applicant himself did not approach the police, thinking that they would pin Rashid’s murder on him.

(15)  He fled to Dhaka and took refute with a friend there for months during which his mother called his said friend once to say that the police had come twice to look for the applicant. 

(16)  The applicant, however, did not encounter any trouble in Dhaka.

(17)  Nevertheless, he decided to leave the country which he did 4 to 5 ½ months later.       

(18)  The applicant stayed in Mainland China for around 3 years, without seeking assistance from the Chinese authorities because he wanted to go somewhere else eventually.

Illegal entry into Hong Kong and lodgment of Claim

5.  The applicant came to Hong Kong from Mainland China illegally in early September 2009.  He was arrested on 6 September 2009.

6.  He first made a torture claim pursuant to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Such claim was rejected by the Director on 6 September 2013.  The applicant had not taken any steps in respect of such rejection.  In the meantime, he had raised the Claim by written representation on 13 August 2013.

Director’s Decision

7.  After considering the information provided by the applicant in his Torture Claim Form dated 13 August 2013 and Supplementary Claim Form dated 31 January 2018 and at the screening interviews on 4 September 2013 and 12 February 2018, during which time the applicant had representation from the Duty Lawyer Service, the Director found the Claim unsubstantiated under any of the other grounds for non-refoulement protection not yet assessed under the Unified Screening Mechanism (“USM”): persecution risk[1], “BOR 2” risk[2] and “BOR 3” risk[3]. 

8.  In short, the Director assessed the risk of harm to the applicant from members of the Rashid family on his return to Bangladesh to be low and further found that reasonable state protection and internal relocation options would be available to the applicant to negate or reduce any such perceived risk.

Appeal to Board and Board’s Decision

9.  The applicant appealed against the Director’s Decision to the Board.

10.  After a rehearing of the Claim on 12 September 2018, at which the applicant was present to testify and answer the Board’s question through an interpreter, the Board dismissed the appeal on the 3 grounds for non-refoulement protection covered by the Director’s Decision. 

11.  In summary,the Board found the applicant an unreliable witness.  It did not accept the applicant’s evidence about what occurred to him in Bangladesh was based on his personal or actual experiences but was just fabricated to ground a claim for non-refoulement protection.  The applicant’s evidence on various matters underlying the Claim such as the circumstances of the dispute over the Land including the identities of the owner, vendor and purchaser, details of the fight between the applicant and Rashid and their respective supporters, the events after the fight and before the applicant left Bangladesh, how long he had respectively stayed in Dhaka and Mainland China, when he left Bangladesh, etc was confusing, inconsistent and far from convincing.  The Board also noted numerous inexplicable differences between the accounts given by the applicant at various stages of the screening process.   

Application for leave for judicial review and Judge’s Decision

12.  By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2846/2018 on 11 December 2018, the applicant applied leave for judicial review of the Board’s Decision without stating any proposed grounds for judicial review.  The accompanying affirmation expressed disagreement with the Board’s Decision raising, in particular, BOR 2 risk.

The applicant did not ask for an open hearing.  The Judge refused leave for judicial review on paper for the reasons in [12] to [17] of the Form CALL-1:

“12. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

15. Since the Board has rejected the applicant’s evidence, he has no factual basis in support of his claim. His grounds in support of his application are his comments without any evidence in support of them.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.”

Appeal to Court of Appeal - grounds of appeal and submission

14.  The applicant appealed to the Court of Appeal by notice of appeal filed herein on 17 November 2021 which stated the following grounds: that he would face hardship if he should return to Bangladesh (“Ground 1”); and that the Board made groundless speculations as a result of relying on non-officially recognised or hearsay new and outdated cases (“Ground 2”).  Neither of these grounds had been raised before the Judge. 

15.  On 19 January 2022, the applicant lodged written submission, by which, he referred to ST v Director of Immigration (sic)[4] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531; R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514; Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex parte Smith [1996] QB 517 for the trite propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim; and (4) that the court may interfere with the exercise of an administrative discretion where the decision is beyond the range of responses open to a reasonable decision maker.

16.  In addition, he referred to s 37ZT of the Immigration Ordinance (Cap 115) which concerns an appeal from the Director to the Board out of time.  The applicant’s appeal against the Director’s Decision to the Board was not at all late.  That being the case, s 37Z is clearly irrelevant.

17.  The applicant appeared in person at the hearing of the appeal on 21 February 2022.  He had nothing to add to his notice of appeal and written submission.

Discussion

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

18.  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

19.  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 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)].

Ground 1

20.  As summarised above, the Claim failed on the facts at both stages of the USM.  The questions whether the applicant would be at risk of life or torture if he is refouled to the 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’s much-repeated bare assertion that he would face hardship if he refouled to Bangladesh is inconsistent with the findings of both the Director and the Board. 

21.  The applicant has not advanced any ground for judicial review, properly so called, that indicates any errors of law, procedural unfairness or irrationality on the part of the Board in reaching the negative findings of fact against him.

Ground 2

22.  As for Ground 2, the applicant has not identified what unofficial or hearsay news or outdated cases that the Board had improperly relied on and in what respects the Board had made “groundless speculations”.

23.  In any event, the finding made by the Board in dismissing the applicant’s appeal was that the evidence put forward in support of a risk of harm had been fabricated.  The Board came to such finding purely on an assessment of the applicant’s credibility.  It was unnecessary for it to, and the Board did not, refer to any news or cases.

24.  Turning to the written submission, there was no attempt by the applicant to elaborate on whether and, if so, how the legal principles he cited had not been honoured in the processing of the Claim save for the complaint the Board had acted in a procedural unfairness in dealing with the Claim in that it had not properly assessed the applicant’s credibility.  Such a statement is too vague and unparticularised to warrant any or any serious consideration. 

25.  In short, the applicant did not in the Form 86 or the accompanying affirmation point to any or any arguable error of law, procedural unfairness or irrationality in the findings by the Board.  That being the case, the application for leave for judicial review of the Board’s Decision was hopeless and leave was rightly dismissed.  Nor did he in the notice of appeal or the written or oral submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

26.  In any event, we have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

Disposition

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