RE APPLE RAZAUL KARIM

CACV 546/2018

[2019] HKCA 670

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 546 OF 2018

(On appeal from HCAL 1043 of 2017)

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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 APPLE Razaul Karim, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 26 October 2018 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 30 November 2017 (“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 30 September 2015 and a notice of further decision dated 13 February 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively).

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 38, is a fear of being harmed or even killed by members of the Awami League (“AL”) if he should return to Bangladesh.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born in Trishal, District Mymensingh, Bangladesh.  He is married with a son.

(2)  He joined the Bangladesh Nationalist Party (“BNP”) as an ordinary member since he was about 20 or 21 years old and rose to the position of the BNP President of Ward Number 2 under the Trishal Municipality at the age of 24 or 25.

(3)  He assisted the BNP by participating in election campaigns and party meetings and lobbying other people to join the BNP.  He had good connections with various significant political leaders of the BNP but they did not have much political influence in the applicant’s locality because the AL has been the ruling party.

(4)  The applicant did not encounter any problem before November 2008.  Then, one day in the late morning in around November 2008, the applicant and a few other BNP supporters were intercepted by around 15 to 20 AL members and supporters when he was assisting in an election campaign for the BNP.  He knew the names of some of those people.  They verbally threatened the applicant (because he was the only one there having a BNP membership) not to assist in the BNP campaign.  The applicant did not report the incident to the police on the advice of his senior leader in the party who considered that they did not have sufficient evidence to make a case.

(5)  The applicant bumped into the same group of AL people on the street later.  They wanted him to attend their clubhouse for a talk.  The applicant did not go on the advice of his leaders for fear that he would be forced to join the AL.

(6)  Around 7 to 10 days later, he bumped into those AL people again.  He was on his own.  They threatened him with troubles in the future since he did not meet with their leaders.  The applicant did not report these later incidents to the police either as AL was in power.  His own BNP party leaders only advised him to be patient and offered no actual assistance.

(7)  The AL won the parliamentary election again in December 2008. 

(8)  In early 2009, the appellant was requested by an AL leader, Abdul Motin Sarker, to assist him in his election campaign in the sub-district election.   The applicant did not do so and stayed low profile.  He was verbally threatened by Abdul Motin Sarker Sarker, who had lost, after the election.

(9)  Subsequently, his shop was vandalised by a group of unknown people and all goods in the shop went missing.  He reported the case to the Trishal Police but was not given any help and was told that he would be in trouble if he made a report against them. Afterwards, the applicant learned from his neighbours that his shop was vandalised by AL people.

(10)  In early May 2009, the applicant was informed by one of his friends that Abdul Motin Sarker and another AL leader Raja Ali together with the police had filed a false murder charge against him in respect of the death of one Rajaul Kajol Morol.  He did not even know the victim. 

(11)  However, as a result of the false accusation, the applicant, who had gone into hiding at a relative’s home, was wanted by the police and he learned from a friend that a warrant for his arrest was issued against him by the Mymensingh District Court (“MDC”). He went to the Dhaka High Court and his barrister obtained bail for him.  He was however required to report to the Mymensingh District Court at regular intervals.

(12)  After 3 to 4 months, the applicant was not granted further bail and was detained in the Mymensingh District Prison, where living condition was poor, for 16 months.  He was interviewed 2 to 3 times by the police which kept on pressurising him to confess to the crime while he was in detention.

(13)  He was released on bail again finally after 16 months with the help of another lawyer. 

(14)  However, Abdul Motin Sarker and Raja Ali continued to threaten him repeatedly and people from the AL had also tried to beat him up when he went outside. 

(15)  After around 4 to 5 months, 2 more false criminal cases were filed against the applicant and he was wanted by the police again.  He was subsequently granted bail for these 2 cases o condition that he reported to the court once a month for each case, which he complied for 5 to 6 months during which time he hid in different relatives’ houses in various places.  He was careful in not disclosing his whereabouts to anyone so he did not encounter any trouble.

(16)  The applicant realised that he could not spend the rest of his life in hiding.  He decided to leave Bangladesh and applied for a passport and a visa for entry to China for such purpose.

Entry into Hong Kong and lodgment of NRF Claim

3.  The applicant left Bangladesh on 2 October 2012.  While at the Dhaka Airport, he had to pay a bribe of 50,000 Takas to secure the return of his passport and boarding card from some unknown airport staff.

4.  He arrived in Hong Kong by boat illegally through Shenzhen on 5 October 2012 and was arrested by the police on the same day.  He raised a torture claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by written submission dated 10 October 2012.  Upon the commencement of the unified screening mechanism (USM) on 3 March 2014, his claim was taken to be a non-refoulement claim under the USM.  The applicant lodged his non-refoulement claim form on 1 December 2014.

5.  While in Hong Kong, the applicant has kept contact with his family and friends.  He was informed that both the AL people and the police have continued to search for him.

Director’s Decision

6.  In processing the NRF Claim, the Director’s representatives conducted screening interviews on 22 April 2015, 17 June 2015 and 25 August 2015 with the applicant who was represented by the Duty Lawyer Service.  

7.  The 1^st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3].  The NRF Claim was found to be not substantiated. 

(1)  First, based on the low intensity and frequency of past ill-treatment from the people of the AL, there are no substantial grounds for believing that the applicant would face any real or foreseeable risk of harm upon returning to Bangladesh.  Nor was there evidence to show that the AL people had made intense and sustained efforts to harm the applicant.  He had never sustained any physical injury at the hands of the AL people.  Other than the vandalisation of his shop, he had suffered mostly verbal threats.  As for the trumped up criminal cases, there was no evidence that he would be deprived of his legal rights concerning the same . There was no indication that the Bangladeshi government/police would not fairly investigate those cases.  The applicant was able to engage a lawyer and was eventually granted bail.  It was not accepted that the asserted past ill-treatment inflicted upon the applicant by his enemies had not attained a minimum level of severity to warrant non-refoulement protection. 

(2)  Second, any misbehavior by the police/prison officials, even if true, could not be treated as the acts of the Bangladeshi authorities as a whole.  The applicant of his own volition did not seek help from the police save in relation to the vandalisation of his shop.  There is objective country of origin information (COI) showing that the police force in Bangladesh, though not flawless, has taken steps to improve its performance; that the Bangladeshi government takes actions to protect the rights of its citizens; and that there are alternative avenues to seek justice in Bangladesh.  In short, reasonable state protection from the Bangladeshi authorities is in fact available to the applicant.

(3)  Third, reasonable internal relocation alternatives are available to an able-bodied adult with extensive business experience like the applicant. 

8.  Following the 1^st Director’s Decision, by a letter dated 27 January 2017 (“12.6.2017 Letter”), the applicant was invited to submit additional relevant facts on or before 10 February 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable grounds.  The applicant did not respond to such invitation.  In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].

Appeal to Board and Board’s Decision

9.  The applicant had in the meantime appealed to the Board on 12 October 2016 after the 1^st Director’s Decision.

10.  The Board conducted a rehearing of the NRF Claim on 13 March 2017, at which the applicant adopted all the information contained in the hearing bundle as his evidence, answered questions by the Board with the assistance of an interpreter and was given the opportunity to make submissions.  The applicant submitted another document at the hearing.

11.  The Board’s Decision covered torture risk, persecution risk, “BOR 2” risk[5] and “BOR 3” risk and dismissed the applicant’s appeal on all these applicable grounds.  Essentially, the Board found the credibility of the applicant questionable as he could not provide the dates of many events that were significant to his case.  As for the documents provided by the applicant, including those in relation to the false criminal charges against him and including the additional letter provided at the hearing, the Board identified various problems which cast doubt on their authenticity so that no weight could be attached to them.  The Board did not believe that the applicant had given a true account of the past events experienced by him.The Board found that the applicant was no more than a low-level supporter of the BNP.  It was not convinced that he had been targeted by the AL and falsely charged with the various alleged offences as he was free to depart Bangladesh on his own passport without problem.  For the same reasons, the Board assessed the alleged future risk of harm to be low.

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 1043/2017 on 8 December 2017, the applicant sought leave to apply for judicial review of the Board’s Decision.  The Form 86 contended that the Board was in breach of procedural fairness in that it had:

(1)  unlawfully fettered its discretion by refusing the applicant’s appeal “on the grounds that they did not satisfy the requirement”;

(2)  acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)  made decisions which were unreasonable or irrational in the public laws sense or were a result of procedural errors or unfairness; and

(4)  failed to meet the greater care and duty owed to a self represented claimant.

13.  Further, by the supporting affirmation filed on the same date, the applicant complained that:

(1)  The appeal hearing bundle was in English and was not provided to him until 6 days before the hearing with an intervening weekend so that there was insufficient time for him to prepare for the appeal hearing before the Board, particularly when he was unrepresented and had no resources to find any reasonably cheap interpreter.

(2)  The Board had significantly relied on a source of news that was not officially recognised or was simply hearsay and cases that had become outdated considering the dramatic changes.  The lack of information from a credible source had resulted in the Board making groundless speculation that it was safe for him to return to his country of origin.

14.  The Judge’s reasons for refusing leave after an oral hearing can be found in [15]-[21] of the Form CALL-1 dated 26 October 2018, [2018] HKCFI 2267 as follows:

“15. These are however all just broad and vague assertions of the Applicant with some 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 that the Board had fettered its discretion, or how did the Adjudicator act in a procedural unfair manner, or why was the Board’s decision unreasonable or irrational in the public law sense, or how did the Board fail to meet the greater care owed to the Applicant, or what COI relied on by the Board that were not officially recognized or outdated or hearsay. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

16.  The only other complaint which the Applicant appeared to have made with any elaboration in his affirmation 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 other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

17.  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 interviews and the Director’s decisions should be well familiar to the Applicant as they 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 he never raised any issue or requested for further time to enable him to better prepare for his appeal at his oral hearing to the Adjudicator.  Accordingly I do not find anything amiss arising from the hearing bundle being given to the Applicant for his appeal before the Board.

18.  The fact is that the Applicant’s claim was rejected by the Adjudicator essentially on his credibility based on the evidence available to the Board with the benefit of hearing him in person and for the detailed analysis and reasons set out in paragraphs 76 – 113 of his decision, in which no legal error or procedural unfairness or irrationality has been clearly or properly identified by the Applicant.

19.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board who are entitled to make such evaluation based on the evidence available to them that the Court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the Court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537. 

20.  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.

21.  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.”

Appeal to Court of Appeal and grounds of appeal

15.  By a notice of appeal filed on 8 November 201, the applicant appealed against the refusal of leave for judicial review on the following ground:

“There is an appeal for the decision of legal aid and would like the case to be adjudged when that is over.”

12.  The applicant filed written submission on 26 April 2019.  However, he mainly repeated the facts of his case, which had been disbelieved by the Board and advanced before the Judge.

13.  The applicant appeared in person at the hearing of the appeal on 3 June 2019.  He had nothing to add to his grounds of appeal or written submission save that the duty lawyer did not put down what he had explained to him and the interpreter cut him short before the Board.

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

14.  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 afresh.  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

15.  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)].  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed below.

Discussion

16.  As stated above, the Board dismissed the applicant’s appeal because it disbelieved the applicant’s version of the events alleged to have given rise to the risk for which he seeks non-refoulement protection.  It came to such a view on the applicant’s credibility and the reliability of his account and the documents produced in support thereof.

17.  Neither the notice of appeal nor the applicant’s submission (written or oral) has addressed the adverse findings as to fact made by the Board against him or stated how the judge might have erred in law, failed to take into account a relevant matter or been otherwise plainly wrong.

18.  The applicant’s fresh complaints against the duty lawyer and the interpreter at the Board hearing were never raised before the Judge and therefore not open to him to argue before this court.

Disposition

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