Bepary Shahealom v. Torture Claims Appeal Board

CACV 245/2018

[2018] HKCA 763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 245 OF 2018

(on appeal from HCAL No. 562 of 2017)

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J U D G M E N T

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Hon L Chan J (giving the judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock dated 11 June 2018 refusing to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board dated 16 February 2017.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 29 December 2013. He was arrested by the police on the same date.  He lodged his non-refoulement claim on 1 January 2014.  His claim was based on the fear that, if he returned to Bangladesh, he would be harmed or killed by the members of Awami League and also the Bangladeshi government because he refused to leave the Bangladesh Nationalist Party (“BNP”) and to join them.  The background facts of this case were set out by the judge in [4] – [9] of the CALL-1 form (published in [2018] HKCFI 1245).

3.By two notices of decision dated 26 January 2016 and 23 December 2016[1] respectively, the Director of Immigration rejected the applicant’s claim for non-refoulement protection.  The former decision covered the BOR 3 risk[2]; the persecution risk[3]; and the torture risk[4], whereas the latter covered the BOR 2 risk[5].

4.The applicant appealed to the Torture Claims Appeal Board.  The board, after hearing the applicant on 24 January 2017, considered that the applicant’s claim was based on his bare assertion without any objective evidence in support.  The board found his assertions implausible and/or unreliable.  There was no credible evidence showing the reason why the AL people and the Bangladesh government would want to harm or kill him in order to prevent him to participate in anti-government activities.  He was only a farmer.  The board rejected that public officials or persons with the authority of the government/state had any connection with the group of alleged perpetrators.  There was neither evidence showing state acquiescence nor evidence that the applicant had sustained injuries at a minimum level of severity.  The board therefore concluded that the applicant failed to provide any objective ground for believing that there was a real chance that the claimed fear would materialize if he returned to Bangladesh. The board dismissed his appeal on 16 February 2017. 

HCAL 62/2017

5.On 3 March 2017, the applicant applied to the court for leave to apply for judicial review under HCAL 62/2017.  According to the form 86, the intended application for judicial review was against “The decision made on unknown date but notified to Applicant on 16 of February 2017.  The decision dated 28 of February 2017 dismissing the Applicant’s petition”.  The form 86 did not contain any ground for seeking relief.  In his supporting affirmation dated 3 March 2017, the applicant advanced 8 grounds for seeking reliefs.  That application came before Deputy High Court Judge Woodcock.

6.The judge by a judgment handed down on 21 July 2017 dismissed the application for leave.  The applicant did not appeal against this judgment.

HCAL 562/2017

7.About 5 weeks after the handing down of the judgment in HCAL 62/2017, the applicant filed another form 86 for leave to apply for judicial review on 29 August 2017 under HCAL 562/2017.  This time, it was stated in the form 86 that the intended application for judicial review was against “The decision made on unknown date but notified to Applicant on 28 of February 2017. / The decision of the torture claims appeal Board/Adjudicator, made on 16 day of February 2017 …” (sic). 

8.Like the previous application, the form 86 contained no ground for seeking relief.  Save and except some additional paragraphs under the heading “Grounds of Review – Procedural Impropriety/Unfairness”, the affirmation in support of the application was virtually identical to the one made under HCAL 62/2017.  The applicant relied on the same 8 grounds for seeking reliefs as in HCAL 62/2017.

9.The application for leave was also dealt with by the judge.  However, due to the lapse of time, the judge probably did not recall her decision in HCAL 62/2017 and there was no reference to that decision in the context of HCAL 562/2017.  An oral hearing was held on 24 January 2018.  After considering the decision of the board and the grounds stated in the supporting affirmation, the judge concluded that there was no prospect of success in the intended application for judicial review.  The judge’s reasons in refusing leave were set out in [15] – [22] of the CALL-1 form dated 11 June 2018 (published as [2018] HKCFI 1245), as follows:

“15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. She analysed the material, claim and evidence carefully. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

16. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. For ground 7, the adjudicator certainly set out the correct standard of proof in her decision. There are no particulars here to illustrate where she has applied the incorrect standard. For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

17. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up‑to‑date COI information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. The adjudicator considered COI material and State protection; she cited the references clearly. She had no reason to go into great detail considering the reason she dismissed the applicant’s appeal yet she did. These grounds are not arguable.

18. Ground 3, a failure to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights, has no merits. The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant. She had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances. There is no merit in this ground.

19. In addition, the applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

20. There is also an allegation that the Director did not assess or screen the applicant’s BOR 2 risk claim before the TCAB rejected his appeal of that risk claim. This is an inaccurate allegation when the Director considered and refused the applicant’s BOR 2 risk claim on 23 December 2016 before his oral appeal hearing of 24 January 2017.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

The appeal

10.The applicant filed a notice of appeal on 20 June 2018.  The notice stated that the appeal was in respect of the decision of the judge dated 11 June 2018 in HCAL 562/2017. Although no ground was contained in the notice of appeal, the applicant referred to his supporting affirmation for the grounds of appeal.  In his affirmation, it was deposed that:

“(1) The Honorable Deputy High Court Judge Madam WOODCOCK was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Deputy High Court Judge Madam WOODCOCK failed to provide detailed reason in support of her decision.”

11.Exhibit A to the supporting affirmation also contained some grounds of appeal.  In addition to those 8 grounds already relied upon by the applicant in his application for leave to apply for judicial review, the applicant added a new ground that the board had misdirected itself that an applicant must experience torture in the past in order to establish substantial grounds for believing that there was a risk of torture in the future.

12.On 4 July 2018, the Department of Justice, acting for the director, filed a respondent’s notice. The director pointed out in the notice that the applicant had already sought leave to apply for judicial review against the board’s decision under HCAL 62/2017 and the application was rejected.  It was contended that the application under HCAL 562/2017 should be dismissed on the grounds of:

(a)   Res judicata and/or abuse of process; and/or

(b)   Undue delay.

13.Notwithstanding the direction given by the court when fixing the hearing date for appeal, the applicant failed to lodge any written submissions in support of this appeal.

14.Ms Lam, Government Counsel for the director, lodged a skeleton submission on 18 September 2018. She submitted that the application for leave in HCAL 562/2017 is a re-litigation of the same matter that had been disposed of in HCAL 62/2017. The latter application amounted to abuses of process which rendered the appeal liable to be struck out and dismissed.  The applicant also failed to discharge his duty of full and frank disclosure as he did not inform the judge of the re-litigation.  Ms Lam also made the point that the application was made out of time and the applicant had not sought an extension of time.

15.We heard the appeal on 25 October 2018.

Discussion

16.In our view, the crucial question in this appeal is whether it is an abuse of process for the applicant to bring a second judicial review under HCAL 562/2017 in respect of the same decision of the board after he had failed to obtain leave from the judge under HCAL 62/2017.  It is prima facie so: see Re Mamun Moihammad Tuhin Al [2018] HKCA 442 at [13]; Sujan Gazi v Torture Claims Appeal Board [2018] HKCA 519 at [4.1]; and Begum Khadija v Torture Claims Appeal Board [2018] HKCA 571 at [22].  The applicant did not provide any written submissions and thus failed to advance any reason to persuade us otherwise. Accordingly, this appeal is an abuse of process and is liable to be struck out.

17.Although the applicant did not take out a proper application for an extension of time to bring the leave application, he did mention in his supporting affirmation that he intended to seek an extension of time under Order 53, rule 4(1).  It is therefore not entirely correct for Ms Lam to say that the applicant did not seek an extension of time at all.  However, for some reasons, he gave no explanation for the delay and the judge did not deal with the issue of delay in her decision.  As we have said in Kwok Cheuk Kin v Leung Chun Ying [2018] HKCA 419 at [29], for an application for leave to apply for judicial review made outside the statutory time limit, the applicant must obtain an extension of time before the application can be entertained. 

18.Although it is not strictly necessary to do so, we would also highlight some salient points in respect of the merits of this appeal.  Here, the applicant did not put forth any viable ground to reverse the judge’s decision.  There is no basis for suggesting that the judge did not give adequate reasons.  Given the findings of fact by the board that there was no reliable evidence that the government and/or state and/or other authorities in Bangladesh had acquiesced in the alleged ill-treatment of the applicant, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.  The matters mentioned in Exhibit A were only a regurgitation of the arguments advanced before, and duly rejected by, the judge.  This course cannot avail the applicant on appeal: see Re Morol Rana [2018] HKCA 617 at [13(b)].  The COI materials the applicant alluded to (but without producing the same) in Exhibit A were published in 2010 and 2011 and are outdated.  Accordingly, we would hold that the appeal should be dismissed in any event.

19.Regarding the new ground raised in this appeal that the board had misdirected itself that an applicant must experience torture in the past in order to establish substantial grounds for believing that there was a risk of torture in the future, the boards’ finding is that the applicant had failed to adduce any credible evidence to show why the AL members of supporters would want to kill or harm him in order to prevent him from participating in activities against an AL led government or a caretaker government.  Assessment of evidence and risk of harm, state protection are primarily for 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 and there is none in this case.

20.For these reasons, we strike out and dismiss the appeal.

The applicant appeared in person

Ms Patricia Lam, Government Counsel of the Department of Justice, for the putative interested party