Re Mojumder Sonjoy

CACV 235/2018

[2018] HKCA 634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 235 OF 2018

(ON APPEAL FROM HCAL 771/2017)

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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 Deputy High Court Judge Josiah Lam given on 5 June 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 4 October 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 2 October 2012 illegally and was arrested on the same day.  After his arrest, he lodged a claim based on Art 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 6 October 2012.   

3.The applicant’s claim was based on the threat from a group of alleged terrorists. According to the applicant, a man known as Jibon visited the applicant’s shop in Bangladesh in around August 2012.  Jibon was a terrorist and also a leader of the Bangladesh Nationalist Party.  Jibon left a box inside the shop.  Thirty minutes later, a man claiming to have been instructed by Jibon took the box away.  Later, Jibon returned to the shop asking for the return of the box. When he found out that the applicant allowed the box to be taken away, he demanded a large sum of money as compensation.  After receiving death threats from Jibon, he decided to flee to Hong Kong.

4.The Director of Immigration refused his claim on 14 February 2013.  The applicant appealed but the Torture Claims Appeal Board refused the applicant’s application for the late filing of an appeal.

5.On 29 April 2013, the applicant raised a non-refoulement claim.  On 28 November 2016, the applicant submitted additional facts to the Director.  The applicant said there was recent escalated tension and disturbances between the Muslims and the Hindus in Bangladesh. The Hindus were persecuted by the Muslims. The applicant feared that he being a Hindu would be persecuted and killed by the Muslims.  He feared Jibon and his gang, who were Muslims, would take advantage of the situation to harm the applicant and his family.  At the TCAB hearing, the applicant also claimed that he feared harm from Rohingyas coming from Myanmar to Bangladesh.

6.By a Notice of Decision dated 24 April 2017, the Director dismissed the applicant’s claim on the following grounds: BOR 2 risk[1], BOR 3 risk[2] and the persecution risk[3].

7.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 11 September 2017, the Board dismissed the appeal on 4 October 2017 on all 4 applicable grounds (BOR2 risk, BOR3 risk, persecution risk and torture risk) (“Board’s Decision”).

8.At [38] of the Board’s Decision, the Board found that the applicant was not a credible witness.  At [49] the Board accepted that if the applicant returns to Bangladesh he may be considered as a Hindu and face some harassment.  However, the harassment was not so serious that the applicant’s situation will fall under any of the applicable ground.  At [57] the Board held that it was not necessary for the Board to assess state acquiescence.

The deputy judge’s decision

9.The applicant filed a form 86 on 17 October 2017.  The form 86 contained no ground for seeking relief. 

10.In the affirmation in support of the leave application dated 17 October 2017, the applicant advanced the following grounds for judicial review:

(1)   the Board erred in finding the applicant to be incredible;

(2)   the Board was wrong to find there was no misconduct on the part of the Director;

(3)   the Board failed to attain the high standards of fairness;

(4)   the Board failed to understand persecution against the Hindus in Bangladesh;

(5)   the Board and the Director failed to conduct sufficient inquiry into the conditions of Bangladesh;

(6)   the Board and the Director failed to conduct critical analysis of relevant information;

(7)   the Board and the Director cherry-picked information;

(8)   the Board and the Director were not clear of the risks facing the Hindus in Bangladesh in that they were persecuted by the Muslim majority;

(9)   the Board and the Director failed to appreciate the lack of state protection;

(10)   the Board and the Director failed to consider extended state acquiescence;

(11)   the Board and the Director failed to assess his claim under all the applicable grounds.

11.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave to apply for leave to bring judicial review proceedings.  The judge gave the following reasons at paragraphs 33 to 41 of the CALL-1 form:

“33. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

35. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had each engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case.

36. Unfortunately, the immigration officer on behalf of the Director wrongly considered that he need not reconsider the torture risk issue in 2017 despite the Applicant in his further submission dated 16 November 2016 had added the allegation of recent escalated persecution of the Hindus by the Muslims in Bangladesh. I agree with the Adjudicator that the additional allegation would oblige a reconsideration of the Applicant’s claim with respect to torture risk. That the Director failed to do so was an error of law. However, the Adjudicator had made up for that. The Adjudicator meticulously reconsidered the Applicant’s claim in relation to all the four applicable grounds including torture risk.

37. In his decision dated 4 October 2017, the Adjudicator had proper basis to find the Applicant’s claim incredible. He was entitled to consider the Applicant did not have any real risk that warranted non-refoulement protection. In light of such finding, the Adjudicator was also entitled not to go on to discuss the issues of human rights violations, state acquiescence, state protection and internal relocation because the Applicant was not really at risk in his home country. The Adjudicator’s findings, conclusions and decisions were not Wednesbury unreasonable.

38. Except for his failure to reconsider the Applicant’s claim in relation to torture risk, the Director’s findings, conclusions and decisions were also not Wednesbury unreasonable. He made no other errors of law or further procedural unfairness.

39. Since the Adjudicator’s reconsideration of the torture risk issue had made up for the Director's error, there is no need to remit the Applicant’s claim to the Director for further consideration with respect to torture risk. The Adjudicator had duly considered the Applicant’s claim with respect to all the four applicable grounds. He had good basis to come to his findings, conclusions and decisions which were all reasonable. He made no errors of law and there was no procedural unfairness on his part. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

40. Apart from that failure to reconsider torture risk, the Director had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. As said, that single error had been remedied by the Adjudicator’s reconsideration of the torture risk issue.

41. The Director’s single error had been remedied by the Adjudicator’s due handling of the Applicant’s appeal against the Director's decision. The Applicant cannot complain anymore. His other complaints have no substance. The Applicant has not got a reasonably arguable case for judicial review. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

Grounds for appeal

12.In the Notice of Appeal dated 15 June 2018 the applicant advanced the following grounds of appeal:

(1)   The Director and the Board failed to consider the concept of extended state acquiescence.

(2)   Applying the standard of anxious scrutiny, there was insufficient basis to support the conclusion that the applicant will not face torture, CIDTP or persecution risks upon his return.

(3)   Failure to consider the psychological harm to the applicant.

13.In his skeleton submissions dated 14 August 2018, the applicant submitted that the Board and the Director failed to consider the following:

(1)   The fact that the applicant was placed in mortal danger by the assailants,

(2)   The death threats to the applicant and his family.

(3)   The severe mental distress caused to the applicant.

14.The applicant agreed by a letter of 15 June 2018 that the appeal can be heard by two judges.  We heard the appeal on 14 September 2018.

General principles

15.Before we address the applicant’s case, it is necessary to highlight the following general propositions which were stated by Lam VP in Re Nupur Mst [2018] HKCA 524, CAMP 524/2018 at [14]:

“14. …

(1) The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir His [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4) In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir His [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6) In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir His [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.”

Discussion

16.The judge correctly pointed out that the Board dismissed the applicant’s claim primarily due to the lack of credibility, and had given detailed consideration to the alleged death threats from Jibon and his men at [32]-[39] of the Board’s Decision and justifiably concluded there were “multiple inconsistencies and implausibilities in his evidence” and that the medical records do not support his case.  The applicant was unable to identify any error committed by the Board in arriving at this conclusion.  We agree with the judge and therefore dismiss Ground 2.

17.As for Ground 1, the judge noted that the Board had explained at [57] of the Board’s Decision that it was unnecessary to consider state acquiescence because the applicant failed to establish his case.  We agree and we would therefore dismiss Ground 1.

18.The applicant failed to show how the alleged psychological harm (if it exists at all) could have any impact on the outcome of the appeal.  We do not consider that there is any merit in this contention and therefore dismiss Ground 3.

19.There is no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person