HOSSAIN MONIR v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 211/2018

[2018] HKCA 851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 211 OF 2018

(ON APPEAL FROM HCAL 699 OF 2017)

-----------------------------------

-----------------------------------

___________________

J U D G M E N T

___________________

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

Introduction

1.1.   This is an appeal by Mr Hossain Monir (“the appellant”) from an order of DHCJ Josiah Lam (“the judge”) given on 29 May 2018 dismissing his application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)1. 

1.2.   The appellant had applied to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 18 September 2017 rejecting the appellant’s claim that he should not be removed from Hong Kong and returned to his country (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decisions of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.  The appellant is a national of Bangladesh born in 1989.  He had worked in Bangladesh as a building contractor.  He entered Hong Kong illegally from the mainland on 16 June 2014 and was arrested the same day.  After his arrest, he lodged a claim on 18 December 2015 that he should not be refouled. 

The appellant’s allegations

3.  The appellant’s allegations in support of his claim have been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what he alleged was that he and his family were “affiliated” with the Bangladesh Nationalist Party (“BNP”). 

-   At the end of 2013, Awami League (“AL”) “people” approached him in conversation to leave the BNP and join AL instead.

-   In January 2014, an AL person told him not to marry a woman whose family was also “with BNP”, or else he would hit him.

-   During the election campaign, he was doing door to door visits and wished to see the woman, but saw some AL members approaching him, so he did not continue.

-   He then moved to a place called Feni about 50 km from his home.  He was at a tea place when he saw some AL members coming with a man called Nurazzaman who was a local plumbing contractor.  As he left, one of them tried to hit him with a stick. 

-   The next day his workers declined to work. He wished to speak with the owner of the house, who had a relative called Hazari.  The appellant invited the owner to tea at a tea shop.  There, an acquaintance told him Hazari had stopped all his (the appellant’s) work.  The appellant then decided to leave.

-   He said his mother told him on the telephone that when he and his father were at Feni, some men went to his house looking for them.  When his mother said she did not know, they destroyed the garden and said they would kill him.

-   He said Al people ferret out BNP supporters in every village, and BNP supporters have no choice but to leave the party or leave the country.  

4.  The appellant’s claim was examined to see if he was at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The Director’s representative had an interview with the appellant.  The appellant had legal assistance to prepare his claim.  After the interview, the Director concluded that the appellant had failed to make out his claim as a matter of fact.  The Director rejected the appellant’s claim for reasons set out in a decision given on 21 June 2016 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 12 May 2017 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellant then appealed to the TCAB which held a hearing at which the appellant was present.  Although the appellant answered preliminary questions about his identity, nationality and background, he did not wish to answer questions relating to his claim and said that he would rely on the materials he had provided.

7.2.   The TCAB thereupon examined his claim on the materials provided in the papers.  The TCAB dismissed the appellant’s appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the Board found that it was unable to make any assessment of the truthfulness of the appellant’s claims as he had declined to answer questions.  And that even taking the appellant’s claims at their highest, he has not suffered anything more serious than verbal threats, and had not suffered any physical harm.  He did not have a profile as a BNP supporter that would bring him to the attention of the AL.  His assertion that AL people target BNP supporters throughout Bangladesh was not based on any objective materials. He had been able to leave Bangladesh freely using his own passport.  There was no evidence to suggest that anything more serious than hollow threats would occur if he returned to Bangladesh.  He had failed to show that any treatment he would face would attain a minimum level of severity, or that there is a genuine and substantial risk of the alleged ill-treatment, or that there is any state acquiescence. 

Application for leave to start judicial review

8.  The appellant then took out an application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision, but only the Director was named as a proposed respondent.  However since the TCAB’s Decision had been attached, the judge correctly took the application as being one against that Decision as well.  The appellant did not set out any grounds in his notice of application and in his affirmation in support, simply asked for the matter to be looked into again on the documents. 

The Judge’s Decision

9.1.   The appellant did not appear at the hearing before the Judge scheduled for 24 April 2018 although the court had sent him a letter informing him of that hearing date.  The two telephone numbers he left for the court’s record were invalid. 

9.2.   On 28 May 2018 he claimed not to have been informed about the hearing on 24 April 2018 and requested an adjournment.  His request was refused by the judge who was not persuaded that the appellant did not know about the hearing date.

9.3.   As mentioned earlier, the Judge refused leave for reasons set out in his Decision, in particular

“33. I have reviewed the Director’s decision plus further decisions and the Board’s decision under ‘rigorous examination and anxious scrutiny’. The Director and the Adjudicator independently found that the Applicant faced no real torture risk, persecution risk, BOR3 risk or BOR2 risk. They also independently found reasonable state protection and internal relocation were available to the Applicant. I am satisfied the Director and the Adjudicator had proper basis for their respective findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. They had each engaged in joint endeavor with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. The Director and the Adjudicator were entitled to render those findings, conclusions and decisions which were all reasonable. They had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”.

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 8 June 2018, the appellant appealed the Judge’s order to this court.  The grounds of appeal were, in brief, (1) that he would face hardship if he were refouled; (2) the TCAB’s reliance on the “source of news” was not officially recognized and hearsay; and (3) the cases cited in the TCAB’s Decision were outdated.

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin (“Country of Origin Information”, or “COI”).  

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, 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 have been conveniently set out in Nupur Mst v Director of Immigration2and I will not repeat them here.  

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong3.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall4are satisfied.   Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing his Notice of Appeal, the appellant was given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if he failed to do so, he shall be deemed to have waived his right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellant did not provide any skeleton submissions, and so his appeal was considered on the papers.   

Discussion

13.  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. 

13.1.   The appellant’s allegation of hardship had already been examined by the TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did.  As explained earlier, the appellant is not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

13.2.   As for the “source of news” argument, that presumably is a reference to the COI. However this argument ignores the fact that the TCAB’s Decision was predominantly based on its finding of fact that there was no real risk of the appellant suffering any of the 4 risks referred to earlier in this Judgment5.

13.3.   Finally, the appellant has failed to identify which “outdated” cases he said were considered by the TCAB.  Apparently this was not raised before the judge and a general assertion of that blanket nature cannot be accepted as a realistic ground of appeal.

14.  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 to commence judicial review proceedings against the TCAB’s Decision.

Order

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