MD IBRAHIM SHEIKH alias MD IBRAHIM SHAKH v. THE ADJUDICATOR OF THE TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 150/2019

[2019] HKCA 887

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 150 OF 2019

(ON APPEAL FROM HCAL 1589 OF 2018)

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J U D G M E N T

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Hon Yau J (giving the Judgment of the Court):

Introduction

1.  This is an appeal by the appellant against the decision of Deputy High Court Judge Lung (“the judge”) given on 13 March 2019 dismissing his application for leave to apply for judicial review.  The intended judicial review was to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 2 August 2018 dismissing the appellant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 February 2018 rejecting the applicant’s non-refoulement claim.  

Background

2.  The appellant is a 31-year-old Bangladesh national.  He entered Hong Kong from Shenzhen illegally by boat on 13 November 2016 and was arrested by the police on 24 July 2017 for taking up illegal employment.  He raised his non-refoulement claim by way of written representation dated 25 July 2017 and later lodged his non-refoulement claim form dated 11 January 2018. 

3.  According to the information provided by the appellant in his non-refoulement claim form he was born and brought up in Village Nitira, P. O Ariol, Munshiganj, Bangladesh.  From May 2014 to October 2014, he worked as a salesman in a grocery shop in Chandudigalia Bazar, Bangladesh.  He became an ordinary member of the Chatra Shibir (“CS”), the student wing of Jamaat-e-Islami (“JI”), an Islamic political party, in February 2010.  The appellant attended the school in which his grandfather was the principal.  JI gave financial support to the school.  The appellant and his grandfather carried out charity work and invited people to join the CS.  However, the Awami League (“AL”) people did not like their work and the appellant became their target when AL came to power.

4.  A number of JI and CS leaders were arrested by the authorities and the police from July 2011 to February 2012.  The appellant and other CS members planned to organise a procession to demand the police to release the CS leaders, but a JI leader stopped them in the fear that many CS members might get killed.

5.  The appellant and his grandfather participated in a rally organised by the JI and another Islamic political party on 5 May 2013.  It was held at Shapla Chatnar and thousands of people participated.  The AL, however, engaged the army and the police to disperse the gathering with weapons and violence.  The participants were assaulted mercilessly and were even shot at point blank range.  The appellant injured his knee and elbow and his grandfather went missing while they were fleeing the place.

6.  The appellant went to Gazipur and stayed with his sister until around 20 May 2013.  He then returned home and was told by his father that the police had come to look for him and his grandfather.  His father advised him to go to Rangpur and seek assistance from Saiful, their former employee.  The applicant did so and stayed in Rangpur until around early 2014.  He did not encounter any problem during that period of time. 

7.  The appellant returned home in early 2014. In May 2014, his political leader was sentenced to death. The appellant together with the JI and CS supporters organized a protest demonstration, and he vandalized the party office of the AL with some supporters.  After this incident, he was told by his neighbours that he together with some of the JI and CS members were targeted by the police.

8.  The appellant then went into hiding in various places, including his sister’s house in Bosaullah Village and the home of his father’s friend in Gopalganj, Chandudigalia.  In around October 2014, he was told by his brother-in-law that his photo had been published in a local paper and he had been accused of being involved in demolishing the AL party office. On the advice of his father he fled to Rangpur to seek refuge with the former employee again.

9.  He later fled to Chittagong.  He also stayed in India for about 15 days to explore the possibility of relocating there and went back to Chittagong when the option did not work out.  On 5 July 2015, when the appellant was having a meeting with his party members the police raided the meeting place.  The appellant managed to escape.

10.  The appellant returned home and when the police came to look for him he fled to Khulna.  He decided to leave his country for China which he did around the end of February 2016 or early March 2016.  He, however, returned home from China when his father told him that an AL leader had assured his father that no harm would be done to him.  Finding out later that it was a conspiracy to arrest him, the appellant went into hiding and left for China again around July 2016.  As stated above, he entered Hong Kong from Shenzhen illegally by boat on 13 November 2016 and was arrested by the police in Hong Kong on 24 July 2017.

11.  The appellant learned from his father that the police would still come to his home from time to time to search for him.  He considered that it was unsafe for him to return home or to relocate to other parts of Bangladesh because the AL people would be able to find him and as the AL was in power, the police could not help him.

12.  Under the unified screening mechanism the appellant’s non-refoulement claim was examined to determine if he was at risk under any of the risks in relation to non-refoulement protection.  They are the “BOR 2 risk”[1] “BOR 3 risk”[2], “persecution risk”[3], and “torture risk”[4].

Decisions of the Director

13.  The claim of the appellant was first considered by the Director.  During this process legal assistance was provided to him.   

14.  The Director found that there was no evidence showing that the appellant was personally targeted by the AL or the Bangladesh government owing to his lowly position in CS.  According to the appellant the AL people had not caused serious harm to him and he did not encounter any problem with the AL people after attending the protest on 5 May 2013.  The AL people and the police targeted him because he had vandalised the office of AL in May 2014. Taking the assertions of the appellant into consideration, the Director came to the conclusion this was a private dispute between the appellant and the AL with nothing to do with the state or politics. The Director, for these reasons, rejected the claim of the appellant.

The TCAB’s Decision

15.  The appellant appealed the Director’s decision to the TCAB.  A hearing was held in which the appellant testified.  The TCAB assessed the evidence provided by the applicant and considered the materials presented to it.  The TCAB found that there was no evidence of intentional ill-treatment upon the applicant as a specific target.  It was also the finding of TCAB that the appellant did not sustain any serious harm occasioned by any organisation or authority and he had never been imprisoned in Bangladesh.

16.  At the hearing, the TCAB put questions to the appellant regarding the Country of Origin information of Bangladesh and found from the response of the appellant that his allegations were bare assertions and mere speculations with no evidential foundation.  The TCAB also asked the appellant why and how he had entered Hong Kong to which he failed to give a plausible response.  This constituted one of the grounds of the conclusion of the TCAB that his evidence was incredible and unreliable.

17.  The TCAB further found that the level of harm against the appellant was low and that the appellant had failed to show that there was a genuine and substantial risk the alleged ill-treatment would materialise.  The TCAB dismissed the appeal of the appellant. 

Leave to Apply for Judicial Review

18.  The appellant then applied to the Court of First Instance for leave to apply for judicial review to quash the TCAB’s decision.  The appellant’s grounds for the application are summarized as follows:

(1)  the Director and the TCAB failed to give him sufficient time to arrange relevant evidence in support of his claim;

(2)  the Director failed to consider state acquiescence;

(3)  the Director failed to consider his argument;

(4)  the Director failed to consider the Country of Origin Information in favour of his claim and he had his pre-conclusive conclusion; and

(5)  the Director failed to appreciate that Bangladeshi administration is incompetent and corruptive.

The Judge’s Decision

19.  The appellant appeared at the hearing before the judge.  The judge concluded that the intended judicial review had no reasonably arguable grounds, thus refusing to grant leave.  The reasons were set out  in paragraphs 11 – 19 of the decision of the judge by way of a CALL-1 Form[5]:

“The Director’s Decision

11.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision

12.  The applicant has not set out any exceptional circumstances.

13.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

‘45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.’

14.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

15.  The applicant appeared before me. He confirmed that he considered that he had had a fair hearing before the Adjudicator. But he was not happy with his Decision.

16.  As to Ground (1), the applicant was asked what documents or evidence he intended to adduce to support his claim. The applicant said that they were the documents concerning the vandalizing of the AL’s office and police charge and warrant. However, the applicant admitted that he had taken part in vandalizing the AL’s office himself. Since he admitted the act, this ground cannot sustain because the evidence will not support his claim.

17.  Grounds (2) to (5) are his opinion without any evidence in support of them. They fail.

18.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

19.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave for the judicial review. Accordingly, I dismiss his application.”

Appeal to Court of Appeal

20.  By a Notice of Appeal filed on 27 March 2019, the appellant appealed the judge’s decision to this Court.  He stated the following in his Notice of Appeal:

“The judge failed to describe law to produce his order. I am not satisfy.”

21.  According to the skeleton submissions filed by the appellant on 12 June 2019, his grounds of appeal are that:

(a) the duty lawyer failed to give him proper legal advice and assistance and slept every time during the legal visits,

(b) the interpreter at the TCAB hearing was unable to translate his case to the adjudicator leading to the incorrect decision made by the Director and the TCAB; and

(c) the Judge failed to reject his leave application with good grounds.

22.  During the hearing the appellant submits that he was detained after being arrested in Hong Kong and he was not released or given any opportunity to enable him to collect evidence to support his claim before the case was concluded.    

Legal Principles

23.  The Director and the TCAB are primary decision makers in relation to an appellant’s non-refoulement claim.  They assess the evidence and are the finders of facts. They make findings not only in respect of the appellant’s credibility and reliability in his evidence, but also in respect of the issues relating to the risk of harm to the appellant, the availability of state protection for the appellant, and the viability of relocation within the home country of the appellant.  In doing so they also have regard to other relevant matters including the appellant’s personal circumstances as well as the Country of Origin information of the home country of the appellant.  

24.  When the matter comes before a judge of the Court of First Instance for leave to apply for judicial review to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  The judge does not hear the non-refoulement claim afresh as if he was the TCAB.  In keeping with the established legal principles, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position are set out in Nupur Mst v Director of Immigration[6].

25.  In the event the matter should come before the Court of Appeal, as in the present case, the focus is further refinedto the scrutiny of the decision of the judge with reference to appellant’s grounds of appeal.  Again, in keeping with the established legal principles governing appeals from a refusal of a judge to grant leave for judicial review, the Court of Appeal will only interfere if the appellant can demonstrate that the judge has made errors of law, or has failed to take into account relevant matters, or is otherwise plainly wrong.  Furthermore, fresh evidence would not generally be admitted unless the requirements in Ladd v Marshall[7]are satisfied. Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to the Court of Appeal.

Discussion

26.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

27.  The ground of appeal that the duty lawyer failed to give him proper legal advice had never been raised with the TCAB or the judge and the appellant cannot as a matter of legal principle rely on it as a ground of appeal before this Court.  This is only a bare assertion of the appellant without any supporting evidence.  When the appellant is asked by this Court to elaborate on the allegation that the duty lawyer slept every time during the legal visits the appellant becomes very evasive.  He first says that he cannot remember advancing such a ground of appeal and then says that he has no memory of such incidents.  The evasive attitude of the appellant lends support to the finding of the TCAB that the appellant is not credible and reliable.

28.  This ground of appeal must fail.

29.  As regards the failure of the interpreter to interpret his case to the adjudicator of TCAB, it is a vague and bare assertion on the part of the appellant.  The appellant fails to provide any basis of his complaint and there is also no evidence to support his claim in this regard.  Moreover, such complaint has never been raised with the TCAB and the judge.  This ground of appeal fails.

30.  The allegation that the judge failed to reject his leave application with good grounds is even more vague.  There are no particulars at all.  In any event, the main reason for the TCAB to dismiss the appellant’s claim was because the TCAB found that the appellant was not credible and reliable, a conclusion which the TCAB was entitled to arrive at even though it was not, in our view, justified to find dishonesty from the mere fact that the appellant had taken up work illegally after arriving in Hong Kong (para. 30).

31.  Regarding the complaint of the appellant that he was all along detained after being arrested and was not released or given any opportunity to enable him to collect evidence to support his claim, he fails to give any particulars of the documents he intended to collect.  He arrived in Hong Kong on 13 November 2016 and was not arrested by the police until 24 July 2017.  There no doubt was plenty of time for him to collect all the necessary documents and evidence to substantiate his claim.  Most importantly, it can be seen from decisions of the Director and TCAB that the appellant was in fact able to present his case fully before them.

32.  This complaint had in fact been dealt with by the judge.  As the appellant told the judge that the documents he intended to collect related to his vandalising the party office of AL, the judge rejected, and in our view correctly, such complaint on the ground that it did not help to further the claim of the appellant.

33.  A closer scrutiny of the evidence of the appellant reveals that the evidence supports the finding of the TCAB that the appellant had failed to show that there was a genuine and substantial risk the ill-treatment he had alleged would materialise.  The appellant was targeted by the police after vandalising the party office of AL, but was never arrested.  Although he had done a criminal act he was able to leave Bangladesh freely to go to China.

34.  He even returned home from China when his father told him that an AL leader had assured his father that no harm would be done to him.  Finding out later that it was a conspiracy to arrest him, the appellant was still able to leave the country again to go to China without any hindrance.  All these clearly show that there is no real risk of the appellant suffering any of the 4 type of risks referred to earlier in paragraph 12 of this judgment on his return to Bangladesh.      

35.  In any event the appellant’s allegations had already been thoroughly examined by the TCAB on the facts.  The judge had assessed the decisions made by the Director and the TCAB, and the judge was correct in holding that the TCAB was entitled to make the findings that it did.      

36.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave for judicial review.

Order

37.  For the reasons set out above, this appeal must be dismissed.