Re A B M Borhanur Rashed

CACV25/2019

[2019] HKCA 811

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 25 OF 2019

(ON APPEAL FROM HCAL 1052 OF 2017)

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Before: Hon Yuen JA and Lisa Wong J in Court

Date of Hearing: 17 July 2019

Date of Judgment: 24 July 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 A B M Borhanur RASHED, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 3 January 2019 refusing him leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeal Board (“Board”) given on 24 November 2017 (“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 5 February 2015 and a notice of further decision dated 23 November 2016 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

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 43, is a fear of being attacked or even killed by people of the Bangladesh National Party (“BNP”) as a result of the applicant having accused 2 BNP members of having cast double votes in the 2001 general election.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born in Feni, Bangladesh. He received 17 years of education from 1984 to 2001 up to college level, attaining a bachelor degree in commerce.

(2)  In 1996, while still in college, the applicant joined the student wing of the Awami League (“AL”) called Chhatra League (“CL”) as an ordinary member.

(3)  In the 2001 election, the applicant was appointed as a campaign secretary of the CL for the Moghbazar constituency and was given responsibility for a voting centre in his area.

(4)  On the day of election, the applicant saw 2 BNP members called Nanna and Forman cast their votes more than once.  He confronted and questioned them why they voted again after having done so once, which led to a quarrel at the scene.  Before those BNP supporters left, they said to the applicant that they would see him again. The applicant did not report this incident of election malpractice to the authority because the police was stationed inside the voting centre, which he was not authorised to enter.

(5)  About a month after the election, on 25 October 2001, 7 or 8 BNP people (including Nanna and Forman and 2 or 3 others who worked in the voting centre for the BNP) assaulted the applicant while he was walking on a street in Dhaka with 2 friends, Babu (who had no political background) and Mamun (who was also a CL member), for 3 to 4 minutes without saying a word.  Babu was stabbed in his left arm with a shaving knife while the applicant and Mamun were beaten up with wooden sticks. One of the attackers fired a shot towards the sky with a pistol. Though injured and outnumbered, the applicant and his friends managed to run away. They sought and received treatment at a private hospital at Dhaka. It took the applicant 2 weeks (including 2 days in hospital) to recover from the injuries he sustained in this attack which, he surmised, was revenge for his having accused 2 of his attackers for casting double votes at the 2001 election. The applicant, however, did not report the attack to the police as he believed that it would be useless and would cause him more trouble given that BNP had just won the election.

(6)  After the BNP won the 2001 election, it formed the government and started to oppress and harass supporters of other parties. As the applicant was a member of the opposing CL and had had a hostile relationship with some BNP members, he stayed away from home and hid in Mirersharai of the Chittagong Division from November 2001 to December 2002 to avoid harm and threats from BNP members and supporters. In late 2002, the applicant’s cousin told him that he had overheard some BNP people having a discussion at a tea stall about attacking the applicant. Upon hearing this, the applicant left Mirersharai for Dhaka to avoid the attack.

(7)  Then, in 2003, the applicant started a stationery business in Dhaka. One day, 3 to 5 BNP people, including Nanna and Forman, approached the applicant to verbally threaten him that they would give him the same treatment as in 2001.  They also pushed, but did not injure, the applicant who managed to walk away.

(8)  Though the applicant tried to avoid BNP people while in Dhaka, he saw these persons 3 to 4 times until 2004. They did not actually hurt him but the applicant always felt under threat of an attack. For this reason, the applicant stopped his business in 2004.

(9)  In 2005, at Babu’s suggestion, the applicant borrowed US$10,000 from a cousin who lived in the USA and started a mobile and electronics business, which involved his coming to Hong Kong to source goods over 30 times until 2006. He did not encounter any problem in these trips.

(10)  Then, one night in February 2006, the applicant had just returned from Hong Kong. He was stopped in the rickshaw he was travelling in and was assaulted and robbed of his goods and cash (equivalent to HK$4,500) by the same group of BNP people armed with shaving knives and hockey and other wooden sticks. In this incident which lasted for about 5 to 6 minutes, the applicant was injured and experienced great pain.  He went to his younger sister’s home where he received treatment from a private doctor.

(11)  On the following day, the applicant went to the Ramna Police Station to file a complaint of robbery. Though he had not since checked with the police on the progress of their investigation, he assumed that the police had done nothing as no one had been arrested. 

(12)  The applicant believed that all his aforesaid unpleasant encounters with people of the BNP from October 2001 to February 2006 were revenge by them for what he witnessed at the 2001 election. He decided to leave Bangladesh, thinking that his life was in danger there. 

Entry into Hong Kong and lodgment of NRF Claim

3.The applicant last left Bangladesh on 19 February 2006. He last entered Hong Kong on 8 May 2006 with permission to stay until 17 May 2006. He overstayed since 18 May 2006. He lodged a refugee application with the office of the United Nations High Commissioner for Refugees in Hong Kong on 29 December 2006, but did not follow up on the same. He was arrested by the police on 9 December 2007[1].

4.The applicant raised a claim (“Torture Claim”) under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by way of written representation (“Representation”) on 10 December 2008. 

5.Upon the commencement of the Unified Screening System on 3 March 2014, the Torture Claim, the processing of which had not yet been completed, was taken to be a non-refoulement claim. The applicant lodged his non-refoulement claim form and supplementary claim form (“Claim Forms” collectively), through the Duty Lawyer Service (“DLS”), on 19 December 2013 and 26 September 2014 respectively. In addition to the Claim Forms, on 19 January 2015, through the DLS, the applicant also provided the Director with written answers (“Written Answers”) to a list of questions attached under the cover of the Director’s letter dated 5 January 2015.

Director’s Decisions

6.In processing the NRF Claim, the Director’s representative(s) conducted 2 screening interviews on 19 December 2014 and 2 February 2015 with the applicant who had legal assistance and representation from the DLS.

7.The 1^st Director’s Decision covered torture risk[2], persecution risk[3] and “BOR 3” risk[4]. The Director found the NRF Claim to be not substantiated under these grounds.

(1)  First, having regard to the low frequency of the applicant’s encounters with the BNP people from 2001 to 2006, the nature of the assaults and the intensity of the injuries inflicted which did not attain a minimum level of severity, the future risk of harm from the people of the BNP on the applicant’s return to Bangladesh was assessed to be low. If the BNP people had any real intention to inflict serious or fatal harm upon the applicant, they could have done so given the ample time and opportunity available during those years. There is no evidence supporting the applicant’s claim that he had been specifically targeted because of the allegation of double voting he made against the 2 BNP members in the 2001 election. The unpleasant encounters at most amounted to criminal intimidation, assault and robbery, without any evidence implicating the state government or the police or suggesting consent or indifference on their parts to illegal acts by individuals of the BNP. Nor is there any evidence indicating that that the BNP people had mobilised any resources in searching for the applicant outside his home area. Further, many years have lapsed since the applicant fled Bangladesh in 2006. Any grudge, even if it had existed, should have dissipated after such a long lapse of time.

(2)  Second, it was the applicant who chose not to enlist help from the police after the attack in October 2001 on the assumption that the police would not render assistance because the BNP was in power. Although the applicant reported the attack in 2006 to the police who accepted his complaint, he left Bangladesh shortly afterwards. He never followed up with the police but speculated that they had not taken any action.  Indeed, the party that the applicant supported, AL, has since 2008 been the ruling party of Bangladesh. It was not accepted that the police would not protect the applicant from people of the BNP should he return to Bangladesh. Anyway, there is objective country of origin information (COI) showing that reforms have been and are ongoing in Bangladesh with positive results in the justice system in recent years. The availability of state protection would further lower or even negate the level of risk (if any).

(3)  Third, internal relocation alternatives (e.g. to Chittagong or Mirersharai where the applicant had stayed for 13 months without encountering the BNP people) are available. The applicant’s assertion that he could not relocate to other parts of Bangladesh for lack of support and for fear that the BNP people could locate him was not accepted. The applicant is an ethnic Bangladeshi and his mother tongue is Bengali. He has received 17 years of education with a bachelor degree in commerce. He is also able to read, speak and write English.  He has experience in running his own business for 2 years. It is not unduly harsh or unreasonable for him to relocate within Bangladesh. There is no evidence that the BNP is powerful or resourceful enough to locate the applicant wherever he is, or would be prepared to expend its resources to find the applicant over a matter that happened back in 2001.

8.Following the 1^st Director’s Decision, by a letter dated 7 November 2016, the applicant was invited to submit additional relevant facts on or before 21 November 2016 so that the Director could take them into account in considering the NRF Claim on any other applicable ground.  The applicant did not respond to such invitation. In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[5].

Appeal to Board and Board’s Decision

9.The applicant appealed to the Board after the 1^st Director’s Decision on 17 February 2015.

10.The Board conducted a rehearing of the NRF Claim on 12 December 2016, at which the applicant testified and answered the Board’s questions (including questions about the voting procedure and arrangement in 2001).

11.The Board’s Decision covered all 4 applicable grounds for non-refoulement protection.

12.The applicant was found not to have established that he would face the alleged or other harm on his return to Bangladesh that warrants non-refoulement protection. More particularly:

(1)  The Board questioned the applicant’s credibility in various regards. The Representation did not reveal any detail about the cause of his fear or the identity of those who instilled fear in him. It did not become clear until the ensuing screening process that the applicant is attributing the attacks and threats that he encountered/perceived from October 2001 to February 2006 to the incident on the election day in 2001. He contradicted himself in the screening process as to whether he was attacked in his year in Mirersharai. The explanations he gave for leaving home in November 2001 and then Mirersharai in December 2002, for stopping his stationery business in 2004 and for changing his line of business in 2005 by blaming it all on the BNP were incredible. The allegation of his cousin overhearing a discussion among BNP people to harm the applicant did not emerge until the 2^nd screening interview. He did not seek protection in Hong Kong until 2 years after his last arrival here or during his many business trips to Hong Kong before that, which is inconsistent with his alleged persistent fear of harm from the BNP people.

(2)  Most importantly, the voting procedure and arrangement in 2001 that the applicant described would prevent him from seeing that the 2 BNP members had voted twice. The Board therefore did not accept the applicant’s alleged confrontation with the BNP voters, which underpins the NRF Claim.

(3)  Even taking the applicant’s claim at face value, apart from challenging the 2 BNP voters, the applicant did practically nothing effective about the election malpractice he allegedly witnessed in the 2001 election. If those persons had indeed voted twice, they got away without suffering any adverse consequence. And no harm was caused to the BNP in the election or otherwise. There was no reason or motivation for the BNP people to bear grudge against the applicant or to harm him, especially after such along lapse of time. Those persons should in any event have vented their anger towards the applicant by assaulting him and his companions a month after the election. That the applicant’s group could escape in the 2001 attack while being outnumbered and while one of the attackers was armed with a pistol (who shot, though not at the applicant) shows that the BNP people had no intention to kill or seriously harm the applicant. The applicant had suffered mostly verbal threats in these encounters.

(4)  The future risk of harm would be even lower if availability of internal relocation, which is not unreasonable or duly harsh for an able businessman in his prime age like the applicant, is taken into account. The applicant’s fear that he will be easily located by the powerful BNP through its wide network is just a bare assertion. There is no convincing reason why the BNP would spend its resources on tracing the applicant after all these years.

Application for leave for judicial review and Judge’s Decision

13.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1052/2017 on 12 December 2017 (“Form 86”), the applicant sought leave to apply for judicial review of the Board’s Decision. The Form 86, after being extensively amended by counsel and solicitors for the applicant on 31 August 2018, raised the following grounds on which judicial review was sought (“JR Grounds” collectively):

(1)  The Board was unreasonable in making speculative findings with regard to the assessment of risk (“JR Ground 1”).

(2)  The Board failed to properly consider and/or assign appropriate weight to the COI and further failed in its duty of joint endeavour (“JR Ground 2”).

(3)  The Board made a mistake of fact and/or failed to take into account a relevant factor, namely that the applicant’s risk of harm emanates from his political opinion generally.

14.After hearing the application for leave for judicial review in open court at which the applicant was represented by counsel and solicitors, the Judge refused leave.

15.The Judge’s reasons can be found in [15]-[33] of the Form CALL-1 dated 3 January 2019, [2018] HKCFI 2840 (“Form CALL-1”), as follows:

“15.  Given the Board’s finding of the applicant’s fear of harm which if true was based solely on the grudge of certain BNP supporters harboured against him from that 2001 voting incident, I propose to deal firstly with the last ground of the applicant in which he complains that the adjudicator failed to take into account that “the risk of harm emanates from his political opinion generally.

16.  In support of this complaint the applicant elaborated in his amended Form 86 [Bundle 1 Tab 12 p 18] as following:

“54. Accordingly, the Adjudicator consistently attributes the Applicant’s feared harm to solely to the incident of the 2001 election when in fact his fear emanates from his membership of the AL and the risk of harm at the hands of BNP members (on account of his political opinion) with the 2001 incident merely being the trigger of their enmity toward him.

55. The Board’s summary of the Applicant’s claim limits his risk of harm to the two individuals from the BNP that the Applicant previously encountered and as a ‘grudge’ but fails to address or assess risk of harm from BNP as an opposing political party and the risk of harm to the Applicant due to his activities in and/or support for AL and in opposition to BNP both in the past and potentially, in the future.  Indeed, the assessment only appears to contemplate the historical fear based on an incident in 2001, namely ‘His enemies are BNP people who are motivated to harm him or kill him by the grudge caused by his confrontation with the two BNP person accusing them of double voting.’ [§23 of Board’s Decision]

56. It is trite that the assessment of risk must consider future harm and therefore the Board needs to consider not only past incidents, but also the risk of harm occurring in the future due to the Applicant’s real or imputed political opinion and/or his intention to manifest same.

57. The Adjudicator’s failure to properly set out and assess the feared harm arising from his political opinion in support of AL generally was a failure to address a central and material issue in the Applicant’s appeal/petition.”

17.  The first question to ask in respect of this complaint therefore must be: Was there any evidence or even suggestion before the Board, or for that matter before the Director,that the applicant had made any political opinion which might have caused or attracted such risk of harm from the BNP people either before or after the 2001 voting incident, or that he had been so targeted by the BNP people because he was an AL member or supporter?

18.  I shall start with the applicant’s TCF dated 19 December 2013 [Bundle 2 Tab 23 p 74] completed with legal representation from the Duty Lawyer Service, in which he stated his claim as follows:

“I made a claim under Convention against Torture and other Cruel, Inhuman or Degrading treatment or Punishment and Part VIIC of the Immigration Ordinance, Cap 115 because I am in fear of being killed by people from Bangladesh nationalist Party (‘BNP’) if I return to my home country, Bangladesh.

Background of incident

I joined Student League, which was a part of Awami League (an opposition party at that time), as an ordinary member in 1996. At that time, every college student joined different organizations. As I was also a college student and I though Awami League was doing something good for the people, I joined Student League. I attended meetings, possessions and protests.

BNP people casting false votes

In 2001, there was a national election. My party leader Mr. Monir Hossain instructed me to check the vote centre and lead people to the vote centre. I saw two BNP people voted for more than once. I knew they were from BNP as it was a small area. We could recognize which party each other belonged to. I asked them why they voted again when they had already voted. Then they started a quarrel with me. After that they told me they would see me later in a threatening tone. Then they left.

The 1^st incident: being beaten up by BNP people

After one month, which was still 2001, when I was in Dhaka, I and my two friends Babu and Mamun were walking on the street. Babu was my friend without any political background and Mamun was also a member of StudentLeague. Suddenly, 7 to 8 males from BNP approached us. I had seen 2 to 3of them in the vote centre working for BNP before. They attacked us without saying a word. One of them used a pistol to shoot towards the sky. Another one used a shaving knife to stab Babu. I and Mamun were beaten up by the others with wooden sticks. I was hit on my back and legs. We managed to run away at the end. The beating lasted for 3 to 4 minutes.

…

BNP winning the election

In 2001, BNP won the election. After winning the election, BNP formed the Government and came to power, then BNP started to oppress and harass people who had been supporting the other party. As I was a member of the opposition party and I had previous hostile relationship with some of the members of BNP, I stayed away from home to hide and avoid harm and threats from the BNP.

Starting my own business and being approached by BNP people in Dhaka

In 2003, I started my stationery supplying business in Dhaka. One day, when I was carrying some stationery in Moghbazar, Dhaka, 3 to 5 BNP people approached me. I knew the names of two of them, Nanna and Forman. They said to me, ‘After a long time you appear again. Get ready yourself! You will be getting the treatment as in 2001.’ I did not reply and just walked away.

I tried to avoid them in Dhaka but I still saw them 3 to 4 times until 2004.  They did not attack me but I always felt like they would attack me and take everything from me as I was always taking some goods and money. Therefore, in 2004, I stopped my business.”

19.  The applicant went on to describe how he started his business in Hong Kong and China without any further incidents with the BNP people until 2006 as follows:

“The 2^nd incident: being robbed and attacked by BNP people

In or about February 2006, after I returned to Bangladesh from Hong Kong, the same group of BNP people (10 to 11 people, including Nanna and Forman) who had attacked me in 2001 found me in Dhaka. I was travelling on a rickshaw with my goods and money.  It was night time, they were armed with shaving knives and sticks.  They stopped the rickshaw and took away all my belongings.  There was around 4,500 Hong Kong Dollars in my wallet.  Those BNP people used wooden sticks to beat me up on my arms and face.  The beating lasted for about 5 to 6 minutes and they took all my money, goods and belongings.  They threatened me that it would be best for me not to come to that place anymore.  They also said that if they see me again they will kill me.  Then they left the scene.” 

20.  The applicant then concluded in his TCF that on the following day he decided to leave Bangladesh as he felt that his life was in danger, and eventually came to Hong Kong in May 2006 and as noted later lodged his torture claim.

21.  In his SCF dated 26 September 2014 [Bundle 2 Tab 27 p 110] completed again withlegal representation upon the commencement of USM, the applicant claimed to have noted “some typing errors and various areas which need clarifications and further explanation”, but I do not find any change or alteration by him in any way as to the basis of his claim of being assaulted by the BNP people as stated in his TCF above.

22.  In his subsequent screening interviews before the Immigration Officer, it is in fact revealing to note how he described as the reason behind the two assault incidents of him by the BNP people in his following answers to the Officer’s questions in the first interview on 19 September 2014 [Bundle 2 Tab 28 pp 115-116] as follows:

“Q31 : In the 1^st incident, the BNP people who attacked you did not say anything. Do you know why they attacked you?

A31 : The reason behind the attack was that on the election day, I had objected to their false voting and on that day, there were some arguments and scuffles between BNP people and myself. They threatened me saying ‘we will see you later’. So they had kept the grudge and that is why they attacked me on the day of the 1^stincident.

Q32 : Were those 2 BNP people who voted more than once amongst the attackers?

A32 : Yes.

…

Q40 : Who were those members of BNP that you had got into hostile relationship with after BNP won the national election in 2001?

A40 : Nanna and Forman.

Q41 : What were their positions in the BNP?

A41 : Nanna was a publicity secretary for the area under Ramna police station and Forman was an ordinary member.

Q42 : What was the hostile relationship referred to?

A42 : Objection to the false voting.

23.  Several months later in his written answer to further questions raised by the Immigration Officer dated 19 January 2015 [Bundle 2 Tab 30 p 126], the applicant referred to the assault by the BNP people in the second assault incident of 2006 as follows:

“Q3 : While doing stationery business in Dhaka, why did you think that BNP people would attack you and take everything from you?

A3 : Because they had threatened me, they would do similar attack like in 2001.

Q4 : Since 2005, you had been travelling among China, Hong Kong and Bangladesh for business. You even went to India and Nepal for sightseeing in 2005. Were you attacked by BNP people except the robbery case in February 2006?

A4 : First time in 2001. Apart from that, only verbal threats and pushing me.

Q5 : Did you encounter any difficulty with Bangladesh immigration during your travel?

A5 : No.

Q6 : Concerning the 2^nd incident in which you were robbed and attacked by BNP people, did the BNP people tell you why they targeted you?

A6 : It is already referred in the incident of 2001.

Q7 : Do you know why the BNP people were still targeting you after all those years?

A7 : They bear grudge and want to take revenge.

…

Q35 : Your party, Awami League (AL), had won the parliamentary election held in January 2014 and is now ruling Bangladesh. In fact, AL has been being the ruling party since it won the national parliamentary election in 2008. Do you still think that BNP people will harm or kill you if you return to Bangladesh?

A35 : Yes because my issue is vendetta.  In our area BNP is always majority even if AL is in power.”

24.  It is abundantly clear from the applicant’s own case as shown above in his TCF, SCF, records of his screening interviews as well as his own evidence that the risk of harm from those BNP people emanates solely from the voting incident in 2001 and had nothing whatever to do with his political opinion generally when there is not a shred of evidence that he had ever expressed any, as the applicant had repeatedly and on various occasions referred to that voting incident in 2001 as a “grudge” of the BNP people had on him and for which they attacked him in the two incidents thereafter, and again using the applicant’s own words, for “vendetta” or “revenge”.

25.  In his analysis of the applicant’s claim the adjudicator set out his findings in his decision as to the cause of the applicant’s fear as follows:

“23.(i) BNP Motivated by the Grudge—The Appellant was actively involved in helping with the work of his party AL. The rival party is BNP. The rivalry of these two political parties was longstanding and continuing. Yet nothing remarkable had happened which might have caused the Appellant concern about his personal safety and well-being until after the election in 2001 when he and his companions were assaulted in the street in Dhaka by BNP people. This is the starting point of events and which events have the cumulative effect of causing him serious concern for his personal safety compelling him to leave the country to safe [sic] his life. In his written representation to the Immigration Department dated 10 December 2008, he says simply and categorically that he has to come to Hong Kong to save his life. No detail has been revealed therein about the cause of his fear, or about the identity of those who might want to kill him. In the course of the ensuring screening process of his non-refoulement claim it has become clear he is attributing the root cause of the past incidents he has encountered and his current fear to the election day incident in 2001. His enemies are BNP people who are motivated to harm him or to kill him by the grudge caused by his confrontation with the two BNP persons accusing them of double counting.”

26.  On the evidence available to him as set out above, the adjudicator was in my judgment perfectly entitled to and did correctly make such finding of facts as to the basis of the applicant’s fear, and I do not find any basis at all in the applicant’s complaint that the adjudicator had made any mistake of fact or had failed to take a relevant factor that his risk of harm emanates from his political opinion generally when there is no evidence whatsoever to suggest that the applicant had in fact made any or generally.

27.  Thus brings me to ground (1) in which the applicant complains that the adjudicator was unreasonable in making speculative findings with regard to the assessment of risk when he is said to have speculated as to the intention of the perpetrators and the degree of harm they intended to inflict during their first attack of the applicant and his two friends in 2001 after the voting incident, and that he further speculates as to how the incident could and should have unfolded, suggesting an alternative scenario that would presumably support a conclusion that the applicant’s fear of the BNP was justified, and therefore it was the failure of the incident to conform to the adjudicator’s own expectations of what he saw to reasonably or plausibly support a finding of fear which led to a conclusion that the applicant’s fear was not justified as opposed to any proper assessment of credibility.

28.  Whilst it may have been unnecessary, in light of the evidence of the applicant’s own case that the basis of his fear from the BNP people arose solely from their grudge against him over the voting incident, for the adjudicator to proceed to examine the applicant’s mindset and conduct after the voting incident or the perception of the two BNP persons involved may have on the applicant as a potential threat to their future endeavor in the election campaign, as he did in paragraphs 24-25 of his decision in his determination as to how likely the applicant’s fears would materialize, the fact is that the adjudicator was in my judgment entitled to and did correctly assess and conclude, based on the totality of the evidence available, in paragraph 33 when he stated:

“33.(iii) Summary—The basis of the objective fear and perceived fear by the Appellant is based on the grudge harboured by BNP. The nature of the grudge and the time lapse of some sixteen years indicates the grudge by itself would not likely at all to give rise to a motivation to harm seriously or to kill the Appellant especially on his return to Bangladesh. The past incidents as analyzed before do not lend support to the fear perceived or objective as claimed by the Appellant. The future risk of harm is therefore assessed to be very low.”

29.  This conclusion was actually corroborated by the applicant’s own evidence as recorded in his TCF about the second assault incident in 2006 when he was robbed by the BNP people and was only beaten on his arms and face with wooden sticks when there was ample opportunity for them to kill him instead if indeed that was their intention, politically motivated or otherwise.  In the premises and for the reasons given I do not find any merit or basis in this complaint of the applicant.

30.  As for ground (2) in which the applicant complains that the adjudicator failed to properly consider and/or assign the appropriate weight to COI and further failed in his duty of joint endeavor to consider and make inquiries into the conditions of Bangladesh when he only referred to one source namely the World Population Statistics Website about the city of Dhaka which it is submitted could not have assisted him in the assessment of risk beyond providing the barest of facts relating to the viability of internal relocation as it had no bearing on whether the applicant was at risk of political violence from the BNP.

31.  Given my judgment that the adjudicator was correct in his findings as to the basis of the applicant’s risk of fear of harm from those BNP people as noted above was not motivated politically, I do not see how he can be faulted in his assessment based on that COI that the future risk of harm would be even lower when internal relocation is available and that it is not unreasonable or unduly harsh for the applicant at his prime age with work experience to relocate within Bangladesh to large cities such as Dhaka where he had previously stayed prior to his departure for Hong Kong.  As such there is no merit in this complaint of the applicant either.

32.  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.”

Appeal to Court of Appeal and grounds of appeal

16.By a notice of appeal filed herein on 16 January 2019, the applicant appealed against the refusal of leave for judicial review. He articulated his grounds of appeal as follows:

“1. The judge has wrongly exercised his decision in coming to the conclusion that the Adjudicator at the Torture Claims Appeal Board has not erred in his decision.

2. First of all, the Adjudicator decided that I am not a credible witness due to the discrepancies found in various statements and records of interviews, protection claims from (sic) in May 2006, my non-refoulement protection claim from (sic) in 19 December 2013, my interview record in 5 February 2015, and my Notice of Appeal in 23 November 2016. As well as my oral evidence that I give (sic) during the Appeal hearing in 12 December 2016.

3. I have already complained to the authorities about the lack of clarity and transparency in the bundle. The judge dismissed my claims because “it was then transpired that his confusion was more to do with his own memory and his inability to answer questions properly. He was not actually confused about the procedure and the interpreter had gone through the bundle with him and he understood its cont (sic).” This is an overstatement as the bundle was only interpreted to me whenever the Adjudicator found is necessary to be referred to certain paragraphs or document. As much as I understood the contents which were interpreted to me. I had no means of finding out what the rest was. The fact that there was an interpreter to be arranged to me during the course of the oral hearing is not a fair indication that the process has been procedurally unfair. The bundle was never read to me prior to the oral hearing as I was only asked to pick it up with limited assistance (as the Duty Lawyers has refused to provide further assistance) and also the fact that I speak little English but can barely read English. It is unfair and detrimental to me to expect me to prepare for the hearing.

4. As I have demonstrated the fact that I have been relying heavily on interpreter, I will never have any means of finding out if the interpreters have been interpreting my words correctly, and further whether the officers have been nothing (sic) down the words correctly.  As much as I wish to rely on the translation, it has proven so far in the case that my words have always been wrongly interpreted.  The judge herself (sic) has witnessed the confirmation that I had no complaints against the duty lawyer.  A lot of the words were simply lost in translations and as such the Adjudicator has wrongly exercised his case management power in deciding that I lack credibility.  I don’t wish to clarify further because I did not have anyone to seek legal advice from and also because I have reached a point of frustration at that point in having to explain myself for the things that I never said.”

17.On 6 May 2019, the applicant lodged his 13 page skeleton argument. We are, however, perplexed and not assisted by this document, the content of which simply does not correspond to what we understand to be the facts or findings or the grounds for judicial review or appeal in this case. More particularly:

Regarding the applicant’s allegations of fact / the Board’s findings

(1)  In paragraph 8(i), the applicant identified his political rivals as “those who invested in the collapsed back (?) at which I worked, the Somota Manab unnayan Society “SMUS””. This is not what the applicantsaid at all.

(2)  In paragraphs 12a, 14, 15 and duplicate paragraph 18 on page 10, the applicant mentioned a finding that “the circumstances of my detention by Delaware” / that “his being detained in a rudimentary Bengali village jail, which had a window and from within passers-by could be seen” but this was not in the papers placed before us.

(3)  In paragraphs 12c, 15, 17 to 22 and duplicate paragraphs 19 to 21 and 23 on pages 10 and 11, the Board was accused of (a) disregarding a document certifying the applicant’s position as the publicity secretary of the Bangladesh Awami Sechchasebok league in Dhaka Rammna (“Certificate”), a copy of which was attached to the skeleton argument dated 6 May 2019, because of the “apparent high prevalence of inauthentic document from Bangladesh” and (b) holding the applicant’s involvement in the AL to be of “a low level” or “exaggerated”. Then, in paragraphs 24, the applicant accused the Judge of failing to apply the necessary scrutiny in relation to the reasoning by which the Board reached such finding. We have gone through the Board’s Decision carefully. The Board did not so find. And none of the JR Grounds was concerned with such an alleged finding.

(4)  In paragraph 12, the applicant purported to set out findings by the Board which, he said, are pertinent to this appeal.  However, the paragraphs of the Board’s Decision identified as containing such findings do not exist. The Board explained its decision in altogether 36 paragraphs but the applicant referred to paragraphs 50 to 54, 60, 61, 62, 64 to 68!

Regarding the applicant’s proposed grounds for judicial review / the Judge’s Decision

(5)  In paragraphs 13a, c to h, the applicant claimed to have submitted in his application for leave below grounds for judicial review that were in fact not included in his amended Form 86.

(6)  In paragraphs 13b, 15(C), 16C, 25 to 28, the applicant reiterated his complaint about the Board’s selection and weighing of COI (JR Ground 2), which is, however, not in the notice of appeal before us.

(7)  In paragraph 14, the applicant criticised the Judge’s reasoning at [15] to [18] of the Form CALL-1 as falling “far short of the ‘rigorous examination and anxious scrutiny of the decision-making process”. Again, the applicant’s notice of appeal did not include such criticism. Anyway, as can be seen from the text quoted in paragraph 15 above, the Judge dealt with JR Ground 3 in [15] to [26] of the Form CALL-1. One therefore cannot isolate just [15] to [18].

(8)  In paragraph 29, the applicant said that the Judge did not provide reasons as to the relevance or otherwise of the COI employed by the Board. This is not a ground of appeal before us. In any event, for the reason given by the Judge in [30] and [31] of the Form CALL-1 (quoted in paragraph 15 above), the applicant’s dissatisfaction with the COI relied on by the Board has no merit or relevance in light of the Board’s primary finding of fact and assessment of the credibility of the NRF Claim.

Regarding the applicant’s grounds of appeal herein

(9)  In paragraph 7, the applicant suggested that this appeal raises an issue as to the standard and approach for assessment of evidence and credibility for non-refoulement claims. It is clear from his notice of appeal (as set out in paragraph 16 above) that it does not. The relevant law is settled. We do not understand the applicant to be questioning any established legal principles.

(10)  In paragraphs 15 and 16, the applicant suggested that this appeal is also concerned with the Board’s alleged disregard of the Certificate, failures to give adequate reasons, evaluate all evidence cumulatively and consider and apply relevant and up-to-date COI and mischaracterisation of the evidence). Again, none of these points appears in the notice of appeal or even in the amended Form 86 (except the point relating to the use of COI).

(11)  The applicant also mentioned in paragraphs 3 and 6 a supplemental notice of appeal that was not filed.

18.The applicant appeared in person at the hearing of the appeal on 17 July 2019. He complained that the Judge got it wrong in stating that he was raised in Feni in the first sentence of [2] of the Form CALL-1; that it is difficult for someone raised in a city to relocate to a village; that he had already tried relocation twice, first to Mirersharai in November 2001 and then to Dhaka in December 2002 / January 2003, but such moves did not work out for him; that he does not even possess a Bangladeshi identity card.  Such oral submission essentially goes to the Board’s finding of availability of reasonable internal relocation alternatives. However, we note, and the applicant accepted, that the JR Grounds in the amended Form 86 did not raise any challenge to such finding by the Board.

Court of First Instance’s role in judicial review in non-refoulement claim

19.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. 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

20.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 will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6] are met. Nor will it generally entertain any new arguments that are fact sensitive that should have been raised in the court below. In short, 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

21.As set out in paragraph 12(2) above, on proper analysis, the primary basis upon which the Board rejected the applicant’s appeal against the Directors’ Decisions is the finding, on the applicant’s own account of the voting procedure and arrangement on the day in question, that he could not have seen the 2 BNP members vote twice and therefore could not have had any confrontation with them over the election malpractice (“Primary Finding”). That such a confrontation took place underlies the whole NRF Claim. Indeed, the ground of appeal raised in the notice of appeal did not specifically address the Primary Finding. Nor did the applicant in the amended Form 86 point to any error of law, procedural unfairness or irrationality in such finding[7] by the Board. That being the case, the JR Grounds, even if meritorious (which they were not), were actually immaterial. The application for leave for judicial review of the Board’s Decision based on the JR Grounds would therefore have been hopeless and was rightly dismissed.  

22.In any event, the question whether the applicant had the alleged confrontation with the BNP people is a question of fact within the province of the Board (after the Director). The Board heard the applicant.  It explained such primary finding in [35] of its decision. The Board’s reasons cannot be faulted.

23.Turning then to the notice of appeal before us, it can be seen from paragraph 16 above that the applicant appealed basically on the ground of lack of and/or insufficient language assistance which, we note, was not an argument run for the applicant before the Judge notwithstanding his having legal representation by counsel and solicitors. Anyway, this complaint is disingenuous. As noted in paragraphs 2(1) and 7(3) above, the applicant has a bachelor degree in commerce and can read, write and speak English. At the hearing on 17 July 2019, the court has arranged for a Bengali interpreter for the applicant. However, he declined any interpretation service and chose to address this court directly in English.

24.The applicant did not in the notice of appeal or his submission before us identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong. Nor can we discern any.

Disposition

25.For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.

The applicant, unrepresented, appeared in person