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CACV 40/2019
[2019] HKCA 552
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 40 OF 2019
(On appeal from HCAL 231 of 2018)
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| RE |
RANA MOHAMMAD MASUD |
Applicant |
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| Before: |
Hon Au JA, Lisa Wong and S T Poon JJ in Court |
| Date of Hearing: |
14 May 2019 |
| Date of Judgment: |
17 May 2019 |
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1.This is an appeal by the abovenamed applicant, Mr RANA Mohammad Masud, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 25 January 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 8 February 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 28 June 2016 and a notice of further decision dated 13 July 2017 (“1st Director’s Decision” and “2nd Director’s Decision” respectively).
Basis and allegations in support of NRF Claim
2.The basis of the NRF Claim made by the applicant, a national of Bangladesh now aged about 25, is a fear of being harmed or even killed by supporters of the Awami League (“AL”). Such alleged fear is said to arise out of the following circumstances:
(1) The applicant was born in Baghia Village, Shariatpur District, Bangladesh to a very large family (over 100 members) of voters and supporters of the Bangladesh Nationalist Party (“BNP”), which was the ruling party from 2001 to 2006.
(2) The applicant himself became an ordinary member of the Palong branch of the Jatiotabadi Chatra Dal (“JCD”), the student wing of the BNP in early 2011. He arranged JCD meetings and canvassed people to participate in the same.
(3) In the meantime, the AL had become the ruling party since 2009.
(4) Prior to the AL coming into power, in 2001, members of the applicant’s family already had a fight with some AL people which led to hostility towards the applicant’s family. In about 2003 or 2004, the applicant’s cousin, Mokbul Choukidaar (“Mokbul”), assaulted and caused serious injuries to Mannam Sharder (Mannam), the leader of the Palong Branch of Jubo League (“JL”), the youth wing of the AL. Although Mokbul was not charged with any offence, he fled overseas.
(5) Since the AL came into power, AL supporters who lived in the applicant’s home village had threatened the applicant’s family to join the AL because the applicant’s family was influential there.
(6) One night in 2010, the applicant was assaulted by AL people with bamboo sticks all over his body for 10 to 12 minutes. They threatened him that he would be further attacked more severely if he did not quit the BNP and join the AL. It took the applicant 2 to 3 days to recover from the injuries. The police registered the case on the applicant’s complaint but took no other action.
(7) In early 2012, Mannam was murdered, the applicant believed, by his fellow AL members as there was an internal conflict within the AL. However, the AL people framed Mokbul and the applicant’s maternal uncle, Wazuddin Choukidaar (“Wazuddin”), for Mannam’s murder. Mokbul and Wazuddin were arrested but went into hiding after being granted bail.
(8) The applicant’s elder brother, Shimul, was falsely accused of vandalising AL members’ houses. He was arrested but was granted bail in about March 2012. He also went into hiding.
(9) Thereafter, the applicant’s family lived in great fear. The applicant heard from some villagers that the AL people would kill his family. His father, elder brothers, uncles and cousins all fled to different places in Dhaka, initially leaving the applicant to take care of the rest of the family.
(10) Then the applicant also went to stay with his relatives in hiding in different places in Dhaka in March 2012, uneventfully.
(11) In October 2012, fearing that the AL people might eventually locate him, the applicant fled to India. However, he only stayed in India for 1 day and returned to Dhaka because of lack of means.
(12) One day in 2013, the applicant’s father told him over the telephone that the AL people had made a false report to the police that the applicant had burgled into the AL leader’s house. The applicant subsequently went back to his home village and went through some court proceedings regarding such false allegations against him. While on bail, he fled to Dhaka again as he feared that the AL witnesses would manipulate the court with bribery to put him in jail.
Entry into Hong Kong and lodgment of NRF Claim
3.In fear of being assaulted and killed by the AL people and also of being arrested by the police for jumping bail, the applicant left Bangladesh on 7 May 2013. He entered Hong Kong illegally from the Mainland on 23 January 2014. He was arrested by the police on 23 February 2014. He raised the NRF Claim by written representation on 25 February 2014 and submitted a Non-refoulement Claim Form (“NCF”) on 13 November 2015.
Director’s Decision
4.In processing the NRF Claim, the Director’s representatives conducted 2 screening interviews on 6 April 2016 and 18 April 2017 (“screening interviews”) with the applicant who was represented by the Duty Lawyer Service.
5.The 1st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3]. The NRF Claim was found to be not substantiated.
6.In the absence of further information from the applicant, by the 2nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].
Appeal to Board and Board’s Decision
7.The applicant appealed to the Board on 11 July 2016 after the 1st Director’s Decision.
8.The Board conducted a rehearing of the NRF Claim on 20 November 2017, at which the applicant adopted all the information contained in the hearing bundle as his evidence and answered questions by the Board with the assistance of a Bangladeshi interpreter.
9.The Board dismissed the applicant’s appeal on all applicable grounds[5].
(1) First, the Board did not believe that the applicant genuinely feared for his life if he returned to Bangladesh and found him to have lied in the background information set out in answer 35 in his NCF and in the evidence given at the hearing before the Board. More particularly, the Board did not accept that the applicant had been assaulted for 10 to 12 minutes and yet sustained only minor injuries from which he could recover in just 2 to 3 days. Indeed, there was no reason for the applicant to be attacked in 2010 with a view to pressurising him to quit “his party”. The applicant did not become a JCB/BNP ordinary number until early 2011. He simply did not belong to any party in 2010 when he was allegedly assaulted. Also, the applicant was not a significant person in the BNP but just an ordinary supporter and member. The Board did not accept that the AL had any intention to harm or kill the applicant. Given the AL’s ruling status, there was no reason why the AL people should make such intense efforts to force the applicant or his family to join the AL. It is far-fetched that the AL would kill so many people or spend so much manpower without serving any purpose. Actually, nothing eventful happened to the applicant’s family when he called them up while he was hiding away from his home village. The applicant further failed to give details of the framed up cases against his male relatives. The Board found this part of the applicant’s case to be fabricated. The Board also rejected the applicant’s claim that he was falsely accused of burglary or that he managed to escape arrest and then strangely surrendered himself by attending court only to later jump bail. He left Bangladesh legally on 7 May 2013. Had he been wanted by the Bangladesh authorities, he would have been stopped at the immigration when he tried to leave the country.
(2) Second, the Board also considered the country of origin information (COI), which shows ongoing reforms in the police efficiency and effectiveness, as well as in the criminal justice system, institutions and services, in Bangladesh. There is a fair legal system in Bangladesh. The applicant would not denied a fair trial even if he were indeed falsely accused.
(3) Third, the applicant, a young able-bodied adult, would not suffer any undue hardship to relocate to other areas of Bangladesh, e.g. the Greater Dhaka Area where he had stayed for sometime prior to his departure from Bangladesh in May 2013. Even though the AL is the ruling party, it would be difficult for them to locate the applicant in such a large and populous country as Bangladesh.
Application for leave for judicial review and Judge’s Decision
10.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 231/2018 on 13 February 2018, the applicant sought leave to apply for judicial review of the Board’s Decision. The Form 86 itself did not set out any grounds on which the intended review was sought.
11.However, by his affirmation of the same date, the applicant made an array of complaints in a rather disorganised manner. First, at page 3, he accused the Board of acting in breach of procedural fairness by:
(1) unlawfully fettering its discretion by refusing his appeal “on the grounds that they did not satisfy the requirement”;
(2) acting in a procedurally unfair manner in dealing with the applicant’s appeal;
(3) making decisions which were unreasonable or irrational in the public laws sense or were a result of procedural errors or unfairness; and
(4) failing to meet the greater care and duty owed to a self represented claimant.
12.Then, at pages 20-23 of the same affirmation, the applicant further suggested the following failures on the part of the Board causing it to arrive at a decision which was Wednesbury unreasonable:
(1) failing to carry out sufficient research or inquiry into the COI or to have regard to relevant and up-to-date COI, resulting in reliance on outdated COI;
(2) failing to take into account or putting proper weight on relevant COI, cherry-picking the COI or putting weight on irrelevant COI;
(3) failing to evaluate or make finding of fact as to whether there is a consistent pattern of gross or mass violation of human rights in Bangladesh;
(4) failing to analyse or assess whether state protection exists in Bangladesh and misdirecting itself as to the extended meaning of state protection;
(5) taking into account or putting weight on irrelevant considerations or relying on inaccurate facts;
(6) failing to call for psychological or psychiatric evaluations or reports on the applicant;
(7) applying the incorrect standard of proof; and
(8) relying on source of news which is not officially recognised or is simply hearsay or cases which are fairly outdated considering the dramatic changes, which resulted in its making the groundless speculation that it is safe for him to return to Bangladesh.
13.Lastly, in the paragraph numbered 8 on page 20 and under the heading “Grounds of Review – Procedural Impropriety / Unfairness” on pages 22-23 of the applicant’s affirmation, he mentioned:
(1) the unspecified failures of the assigned duty lawyer, resulting in a lack of or insufficient legal representation for him at the first instance; and
(2) his strong belief that he had not been given sufficient time to prepare for the hearing before the Board because he was supplied with the hearing bundle just a few days before the hearing; the majority of the documents in the bundle were written in English and he has limited skills in English and was not provided with language assistance.
14.The Judge’s reasons for refusing leave after an oral hearing can be found in [13]-[18] of the CALL-1 form dated 25 January 2019, [2019] HKCFI 78 (“CALL-1 Form”), as follows:
“13. These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.
14. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.
15. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all being already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.
16. The fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.
17. In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.
18. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
Appeal to Court of Appeal and grounds of appeal
15.By a notice of appeal filed on 29 January 2019, the applicant appealed against the refusal of leave for judicial review on these grounds:
(1) The Judge was wrong in law in holding that there was no state acquiescence or involvement (“Ground 1”).
(2) The Judge failed to provide detailed reason (“Ground 2”).
16.The applicant filed his skeleton submission on 10 April 2019.
17.In support of Ground 1, the applicant referred to ST v Director of Immigration [2014] 4 HKLRD 277; and Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 HKLRD 289 for the well settled propositions that high standards of fairness are required on the part of the decision-makers in processing torture claims; that the court will on judicial review subject the determinations made on torture claims to rigorous examination and anxious scrutiny; that the potential deportee should be given every opportunity to establish his claim; and that the conditions of the applicant’s country of origin ought to have been considered.
18.As for Ground 2, the applicant cited The Council of Civil Service Unions v Minister for Civil Service [1985] AC 374 at 383D; Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 at 253C-D and Michael John Treloar Rowse v Secretary for Civil Service [2008] 5 HKLRD 217 at [134] to say that a decision-maker (such as the Board) is under a constitutional duty to act fairly in its decision-making process.
19.The applicant appeared in person at the hearing of the appeal on 14 May 2019. He had nothing to add to his grounds of appeal or skeleton submission.
Court of First Instance’s role in judicial review in non-refoulement claim
20.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].
Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim
21.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2)].
Discussion
22.Ground 1 is entirely misconceived. We have set out in paragraph 14 above [13] to [18] of the Call-1 Form which contains the Judge’s analysis of the applicant’s application for leave for judicial review of the Board’s Decision. It can be seen that the Judge did NOT make any finding as to the presence or otherwise of state acquiescence or involvement. He could not have done so. It was not within his province to do so.
23.Ground 2 is likewise devoid of merits. The Judge did provide reasons for refusing leave on the proposed grounds of judicial review advanced by the applicant. See again [13] to [18] of the Call-1 Form quoted in paragraph 14 above.
Disposition
24.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.
| (Thomas Au) |
(Lisa Wong) |
(S T Poon) |
Justice of Appeal
|
Judge of
Court of First Instance |
Judge of
Court of First Instance |
The applicant, unrepresented, appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
[4] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance.
[5] Although the applicant did not lodge any further appeal after the 2nd Director’s Decision dismissing the claim of “BOR2” risk.
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