RE MD HIMEL also known as MUNA SARKAR also known as SAHEN

CACV 1/2018

[2018] HKCA 279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 1 OF 2018

(ON APPEAL FROM HCAL 218 OF 2016)

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J U D G M E N T

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

1.  This is an appeal against the decision of A Wong J dated 28 December 2017 refusing leave to the applicant for leave to apply for judicial review. The applicant is from Bangladesh. He had arrived in Hong Kong multiple times under different guises. He was convicted of various criminal offences (including but not limited to the breach of stay condition) and sentenced to terms of imprisonment.

2.  On the last occasion, he arrived in Hong Kong on 26 March 2006 with permission to remain until 2 April 2006.  He overstayed and was arrested by the police on 8 December 2010.  On 11 December 2010, he was convicted of breach of stay condition and breach of deportation order, and was sentenced to 12 months’ imprisonment.  After serving his terms in prison, the applicant lodged a torture claim through his lawyers on 27 September 2011.  The applicant later withdrew his torture claim on 28 November 2012.  Instead of leaving Hong Kong, he went underground. He failed to report for his recognizance after March 2013.  Over three years later, on 13 May 2016, he was arrested by the police on 13 May 2016.  He requested to re-open his claim on 16 May 2016.  Having considered the additional information provided by him and the submission by his legal representative, the Director of Immigration (“the Director”) decided to allow him to re-open his torture claim on 7 June 2016.

3.  The applicant’s claim was based on his fear of harm, or even being killed, by his business partners who were affiliated with the Awami League (“AL”) in Bangladesh.   The business partners threatened to kill him when they discovered that he was affiliated with the opposing political party Jamaat-e-Islami (“JI”).  Additionally, the applicant claimed that, because of his jumping bail in Bangladesh, he would be arrested upon his return.

4.  By a Notice of Decision dated 16 August 2016, the Director decided against the applicant’s claim.  The Director considered that the perceived risk of harm was not likely to materialize because of the low frequency and severity of the alleged ill-treatment from the AL people, the lack of evidence showing that the Bangladeshi government was involved in the dispute, and the long lapse of time since he was evidently involved with JI.  The Director also found that the availability of state protection would lower the perceived risk upon his return.  The decision covered torture risk, BOR 3 risk, and persecution risk.

5.  By a Notice of Further Decision of 24 October 2016[1], the Director also assessed BOR 2 risk in respect of the applicant and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After having an oral hearing on 11 October 2016, the Board dismissed the appeal on 3 November 2016 for the reason (among others) that his account was simply unbelievable.

7.  The intended judicial review was in respect of the decision of the Director dated 16 August 2016 and the decision of the Board dated 3 November 2016. According to the Form 86 filed on 25 November 2016, the applicant relied on the following grounds for his intended judicial review:

(a) the Director failed to give sufficient weight to the relevant COI that supports the applicant’s claim;

(b)  the Board failed to carry out sufficient inquiry and to advise the applicant to produce medical report that would show the seriousness of his injuries; and

(c) in accepting the Director’s conclusion regarding the availability of state protection, the Board failed to attain the high standards of fairness.

8.  After summarizing the background of the case, the judge gave the following reasons in refusing leave at [24] to [34] of the judgment dated 28 December 2017:

“24. Against the Director, it was submitted that he failed to give sufficient weight to the information which supported his allegations. The Applicant criticised that the Director had failed to observe up-to-date COIs with both broad and general relevance and / or information related to people in similar profile as him. He also criticised the Director for failing to give sufficient weight to information that there has been serious corruption and only powerful people would receive assistance from the police. Even though there is information of reforms in the police, the conclusion in those COIs of improvement is mere speculation. In addition, it was submitted that the Director failed to give adequate reasons for his decision.

25. I have perused the Decision of the Director. In the light of the extent and depth of the relevant analysis and assessment, I do not consider there is a realistic prospect of success in pursuing any of the points raised against the Director. The COIs quoted by the Director were materials which he was entitled to take into account. The decision can hardly be said to be unreasonable. The reasons given in support of the decision is sufficient in the circumstances of the case.

26. Against the Chairperson, it was submitted that she did not make sufficient enquiry. It was further submitted that as medical report is relevant to the consideration of whether the actions alleged were severe enough to be qualified as ‘torture’, the Chairperson should have advised the Applicant to obtain medical reports and she failed to do so. It was submitted that the decision was unreasonable and also that the wrong test was applied in the consideration of whether the Applicant’s fundamental human rights are at risk in that the extradicted. adopted the test of whether the State ‘would be able to’ provide protection rather than the test whether reasonable protection has ‘in fact’ been provided.

27. Having perused the Decision of the Chairperson, I am again of the view that there is no realistic prospect of success in pursuing any of the points raised against her.

28. I do not consider the Chairperson had made insufficient inquiry or failed to meet the necessary standard of fairness. There was detailed analysis and consideration of the relevant issues with careful assessment of the factual assertions made by the Applicant. The findings on facts are reasonable and consistent with evidence. As regards consideration of COIs, the Chairperson said the Board had ‘stringently scrutinized and checked for relevance and COIs had been presented to the Appellant for his comments and had ensured the Appellant had been given a chance to respond, refute the COI evidence and give his comments.’

29. There was clear finding that there was no state acquiescence in any form. I do not consider the assessment of the Chairperson in this aspect was flaw.

30. As regards the point about obtaining of medical report, whilst such report may be of significance in certain case, it is not in the circumstances of the present case as the Chairperson, indeed the Director as well, considered the case based fully on the extent and degree of injuries described by the Applicant without questioning the truthfulness of his description. The alleged attacks took place years ago and there is no indication of any possibility of serious injuries unknown to the Applicant which may otherwise be revealed in a report on his medical examination back in the time of alleged attack.

31. All in all, I do not consider it can be reasonably arguable that there were material wrongful consideration of the evidence and that the decision was unreasonable in the Wednesbury sense.

32. Judicial review is not a further or alternative appeal procedure. As said by Lam J, as he then was, in TK v Director of Immigration, in the context of judicial review of a decision of an adjudicator, the crucial issues are :

(1) whether the adjudicator committed any error of law in his decision;

(2) whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3) whether the substantive decision satisfied the enhanced Wednesbury test.

33. I have considered the Decisions of both the Director and the Chairperson. I am not persuaded that any allegation by the Applicant is substantiated in the sense that there is realistic prospect of success.

34. I do not consider anything the Applicant said at the hearing enhance his case materially.”

9.  In the Notice of Appeal dated 2 January 2018, the applicant advanced the following grounds of appeal:

“1. The learned Judge has erred in law, fact, and logic in concluding that there was no realistic prospect of success in pursuing any points raised against the Director of Immigration and the Adjudicator.

2. The learned Judge has erred in finding the decision of the Director of the Immigration and the Adjudicator were reasonable without providing detailed explanation.

3. The learned Judge has erred in concluding there was no state acquiescence in any form and he agreed with the assessment of the Adjudicator in this aspect.”

10.  By the letter dated 5 January 2018, the applicant agreed that the appeal can be heard by two judges.

11.  Notwithstanding the directions from the Registrar of Civil Appeals on 12 February 2018, the applicant failed to lodge any written submissions in support of his appeal.

12.  We heard the appeal on 15 May 2018.

13.  It is clear that the first ground of appeal as set out in the Notice of Appeal is no more than the applicant’s expression of dissatisfaction in respect of the judgment.  In the absence of any particulars regarding the alleged errors in the judgment, we are not able to find any merits in it.

14.  As is shown in [8] above, it is simply wrong to suggest that judge did not give detailed explanation in upholding the Director and the Board’s decisions.  We have also previously held that the judge’s observations should be read together with the detailed reasons given by the Board and the Director: Re Zunariyah [2018] HKCA 14. 

15.  Having considered the judgment of 28 December 2017, we take the view that the judge’s conclusion for refusing leave is justified.  There is nothing amiss in the Director’s reliance on the COI.  As we have held, 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 the absence of any legal error: Re Lakhwinder Singh [2018] HKCA 246.

16.  We cannot see any evidential basis to suggest that the Board had failed to carry out sufficient inquiry or failed to meet the high standards of fairness.  We note that, in [63] – [64] of the Board’s decision, it was stated that:

“63. Since the Appellant [i.e., the applicant] and his legal representation had failed to, it fell upon the Board to look for relevant COI materials. In that task, it was borne in mind that COI is normally a critical means of ensuring a complete understanding of the relevant risks, especially in the Appellant’s home area. The COI materials obtained by the Board were stringently scrutinized and checked for relevance. It was ensured that the source(s) of the COI materials referred to or used by the Board were fully referenced, so that the reader of the Board’s Decision would be able to independently verify and assess the information and trace every piece of information to its source.

64. It was only after compliance with the matters referred to above were the COI materials presented to the Appellant at the Hearing for his comments.  The Board ensured that the Appellant was given a chance to respond, provide a full and informed explanation, refute the COI evidence referred to by the Board or otherwise give his comments on the COI evidence.”

17.  With such thorough and rigorous scrutiny by the Board, we cannot see any reasonably arguable basis to suggest that the Board’s treatment of COI has fallen below the required high standards of fairness as laid down in Secretary for Security v. Prabakar (2004) 7 HKCFAR 187.  Nor can the Board’s decision be challenged on the basis of procedural unfairness.

18.  Given the alleged attacks took place 20 years ago, and in the absence of any evidence suggesting that the applicant sustained some lasting or permanent injuries due to the attacks, we agree with the judge that the medical report would have no probative value in the circumstances of the present case.

19.  We have also read the full decision of the Board.  We take the view that the Board was perfectly entitled to come to its conclusion in the present case.  In the light of the Board’s finding that the applicant’s business partners were non-state actors and the lack of evidence on inadequate state protection, there is no scope for the applicant to argue that he would face a real risk of ill-treatment or torture based on the concept of state acquiescence.  We are of the clear view that the applicant has failed to meet the high threshold of establishing ill treatment as required by the law: Ubamaka v. Secretary for Security (2012) 15 HKCFAR 743 at [172] to [174].

20.  Having read the materials placed before us, we are of the view that the findings of the Board and the Directors, as well as the observations of the judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Director and the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.  We do not see any reasonable basis to challenge the decisions of the Director and the Board by way of judicial review.  We agree with the judge that leave to apply for judicial review should be refused.

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