Re Joynal Abedin

CACV 544/2019

[2020] HKCA 291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 544 OF 2019

(ON APPEAL FROM HCAL 889 OF 2018)

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Before:  Hon Barma JA, Barnes and Lisa Wong JJ in Court

Date of Hearing:  21 April 2020

Date of Judgment:  7 May 2020

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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 JOYNAL Adedin, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 22 November 2019 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 19 April 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 25 February 2016 and a notice of further decision dated 4 May 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively “Director’s Decisions” collectively).

Bases and allegations in support of NRF Claim

2.The bases of the NRF Claim made by the applicant, a national of Bangladesh now aged about 40, are the fears (1) of being attacked or even killed by the Awami League (“AL”), the ruling party of Bangladesh since 2008, due to his support of the Jaatmat-e-Islam (JeI”), a rival party, and (2) of being arrested by the Bangladesh police for protests by the JeI.

3.Such alleged fears are said to arise out of the following circumstances:

(1)  The applicant and his family owned a shoe shop and a tea shop in the Monirampur Bazaar. The latter shop, which was let to a tenant, was located next to the office of the AL.

(2)  Under the influence of his family, the applicant became a supporter of the JeI at a young age. 

(3)  Beginning from late 2006, after the end of the rule by the Bangladesh Nationalist Party (“BNP”), because of his and his family’s support of the JeI, the applicant had received numerous face-to-face threats, including threats to close down the tea shop, from Adom, Sandip, Jamal, Shofidur Rahaman (“Shofidur”) and other AL people whom he cannot name. 

(4)  The tea shop was eventually taken over by force by Shofidur in February 2009.

(5)  In 2010, Adom and Sandip began to demand the applicant to pay them, failing which they would not allow him to operate the shoe shop in the Monirampur Bazaar. The applicant paid up out of fear.

(6)  In February 2012, after the conviction and sentencing to death of Delwar Hoosain Sayeedi, the JeI’s national leader, protests and strikes by the JeI broke out throughout Bangladesh.  The applicant’s paternal uncle, Mohir, was involved in the JeI protests and strikes but the applicant himself did not participate out of fear of the AL. 

(7)  Amidst such unrests, the AL tried to stop the JeI’s supporters.  One day in 2012, Sandip went to the applicant’s shoe shop with 3 other persons and took away a lot of things and threatened the applicant and his family to stop supporting the JeI. 

(8)  Then, on around 28 February 2012, the applicant received information from his friend, Jakir, that the AL was planning to attack him and his family because it was well known in their village that they supported the JeI and also because Mohir was involved in the JeI protests. The applicant immediately fled the Monirampur Bazaar by motorcycle. 20 to 25 AL people armed with machetes and axes gave chase. The applicant eventually rode to safety when he reached Rajgoni Road where the JeI supporters present outnumbered the AL people following him.

(9)  Back in 2007, the applicant had sought assistance from the local leader of the AL, Khan Tipu Sultan, who however told him to deal with his own problem. The applicant had also reported the AL’s threats to lock up the tea shop to the Monirampur police station but the police did not take any action because the persons making the threats were from the AL.

(10)  The applicant’s father as owner of the tea shop had further made a complaint to the Monirampur Corporation, a government office handling local matters, about the seizure of the tea shop. However, that evening, the chairman of the Monirampur Corporation called the applicant and told him that the corporation did not have to do anything because Gour Ghosh, the Councillor of the Corporation as well as the secretary of the AL at the police station level, had indicated that it was an AL matter and the AL would look into it and that the applicant needed to meet Gour Ghosh.

(11)  The applicant had also gone back to the Monirampur police station but the police simply asked the applicant to meet Gour Ghosh, which the applicant did not do as he was scared of Gour Ghosh and did not believe that he would help him.

(12)  The applicant did not go to the police after the 28 February 2012 incident because he believed from his previous experiences that the police would take no action. He was also afraid the police might arrest him due to the JeI protests.

(13)  The applicant sought refuge in Dhaka several times, each time staying 10 to 15 days, whenever he felt insecure in his local area. However, he did not believe internal relocation would be possible. While he was still in the country, senior leaders of the JeI were sentenced to death. The situation had got even worse after his departure. He gleaned from the Facebook that at least 60 to 70 JeI people from just Monirampur had been arrested. His uncle Mohir was still in hiding.

Entry into Hong Kong and lodgment of NRF Claim

4.The applicant left Bangladesh for Shanghai, China on 31 May 2013.  Having lost his passport while in China, he entered Hong Kong illegally by boat on 1 October 2013. He was arrested by the police on 16 October 2013.

5.The applicant initially raised a claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention”) by written representation dated 19 October 2013. Upon the commencement of the unified screening mechanism on 3 March 2014, such claim was taken to be a non-refoulement claim, which was supplemented by a non-refoulement claim form dated 12 October 2015. 

6.In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 1 December 2015 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decisions

7.The 1^st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3].　The Director found the NRF Claim unsubstantiated under these 3 grounds for non-refoulement protection.

(1)  First, the risk of harm from the AL people was low. The applicant had received only verbal threats. He had not adduced evidence of any actual physical harm done to him by the AL.  The threats against the applicant by the AL in the past did not attain a minimum level of severity. The low intensity of past ill-treatment is indicative of a small future risk of harm upon the applicant’s return to Bangladesh. As for the applicant’s perceived risk of being arrested due to the protests by the JeI in the past, he had never been arrested, detained or in any way harmed by the police in Bangladesh. He was able to leave Bangladesh without any mishap. Such fear was purely speculative.

(2)  Second, the fact that the officers at the Monirampur police station took no action on the applicant’s report was misconduct on the parts of individual officers of a particular police station.  It did not show that the state of Bangladesh as a whole had condoned such misconduct or failed to protect the applicant or was even aware of such misconduct. There is objective country of origin information (COI) showing that reforms have been and are ongoing in Bangladesh with positive results in improving the effectiveness of the police force and the justice system in recent years. The availability of state protection would lower or even negate the risk (if any).

(3)  Internal relocation alternatives (e.g. to Dhaka, the capital and the largest city of Bangladesh where the applicant had sought refuge in the past), which would further negate or lower the perceived risks, are available in such a large and populous country as Bangladesh. And it is not unduly harsh or unreasonable for an abled-bodied adult with business experience like the applicant to relocate within Bangladesh.

8.Following the 1^st Director’s Decision, by a letter dated 11 April 2017, the applicant was invited to submit additional relevant facts on or before 25 April 2017 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[4].

Appeal to Board and Board’s Decision

9.The applicant appealed to the Board on 7 March 2016 after the 1^st Director’s Decision.

10.The Board’s Decision covered all 4 applicable grounds[5] for non-refoulement protection.

11.After a rehearing on 27 April 2017, at which the applicant testified before, and answered questions by, the Board through a Bengali interpreter, the Board was not persuaded that the applicant would face any torture risk, persecution risk, “BOR 2” risk or “BOR 3” risk in Bangladesh and dismissed the applicant’s appeal on 19 April 2018.

12.Notably, the Board found “a substantial amount of illogical incongruence in the Applicant’s story”, which “has no appeal to the logical common sense of a reasonable fact finder”. The Board did not accept that “there is any probable truth in what the Applicant has said”, that “there is reasonably logical and credible evidence to suggest the Applicant is at risk of ill-treatment from private individual or from the State”, or that “the Applicant is facing a real, present and existing risk of harm from the AL members” or “at risk of torture in his village, town or country”. See, in particular, paragraphs 30 to 34 of the Board’s Decision.

13.That being the case, it was unnecessary for the Board to consider the issues of state protection or internal relocation alternatives.

Application for leave for judicial review and Judge’s Decision

14.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 889/2018 on 17 May 2018, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on 2 grounds summarised by the Judge in [10] of the Form CALL-1 dated 22 November 2019, [2019] HKCFI 2420 (“Form CALL-1”) as follows:

(1)  that the Board erred in failing to maintain high standards of fairness by not providing the hearing bundle with skeleton argument of the Director to him within a reasonable period of time and/or with interpretation thereby not giving him sufficient time to prepare for his appeal especially due to his limited skilled in English and being unrepresented in his appeal before the Board;

(2)  that it was procedurally unfair that the documents in the hearing bundle which were in English were not translated for him that he was unable to properly prepare for the oral hearing of his appeal.

15.After hearing the application in open court at which the applicant was present and was assisted by a Bengali interpreter, the Judge refused leave. His reasons can be found in [11]-[17] of the Form CALL-1:

“11.  For his complaint in Ground (1) of not being provided with the hearing bundle for his appeal until just four days before the hearing and without translation of the documents in English thereby given insufficient time to prepare for his appeal, the Applicant did not provide any documentary evidence such as the covering letter from the Director that came with the bundle that it was given to him only four days before the hearing, but even if it were indeed the case, I note that most of the documents such as his NCF, record of his screening interview and the Director’s decision had all already been made available to his lawyer from DLS and would have been well familiar to the Applicant, and with which he never raised any issue at the oral hearing of his appeal before the Board, nor did he ask for further time to better prepare for his appeal. Instead he was able to proceed with his appeal and to answer questions from the adjudicator with the assistance of an interpreter without any difficulties. As such I do not find any basis or merits in this complaint of the Applicant.

12.  For the same reasons I do not find his complaint under Ground (2) reasonably arguable as he was already familiar with most of the documents when he was still represented by DLS and that his NCF was prepared on his own instructions, and that he never raised any issue over translation at the hearing before the Board.

13.  Furthermore, as his claim was rejected by the Board essentially on its adverse finding on his credibility as to his claimed fear of harm for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 34 of its decision, in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably basis to challenge the finding of the Board.

14.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.  The fact is that it has been established by both the Director and the Board in their 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.

16.  In the premises and having considered 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.

17.  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

16.The notice of appeal and the supporting affirmation filed herein on 27 November 2019 alluded to 2 grounds of appeal:

(1)  that the Judge erred in holding that there was no state acquiescence or involvement (“Ground 1”); and

(2)  that the Judge failed to provide detailed reason in support of the Judge’s Decision (“Ground 2”)

17.In his skeleton submission dated 9 April 2020, the applicant referred to ST v Director of Immigration (sic)[6] [2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, The Council of Civil Service nions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for Civil Service [2008] 5 HKLRD 217 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

18.The applicant appeared in person at the hearing of the appeal on 21 April 2020.  He did not add anything to his notice of appeal or written submission.

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[7]are met. Nor will it normally 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.Ground 1 is entirely misconceived. We have set out in [13] above [11]-[17] of the Form CALL-1, which contains the Judge’s reasons for declining 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 involvement. He could not have done so. It was not within his purview to do so.

22.Ground 2 is likewise devoid of merits. The Judge did provide reasons for refusing leave. See again [11]-[17] of the Form CALL-1.  Those reasons were, in our view, sufficient to deal with the applicant’s proposed grounds or judicial review.

23.As for the propositions mentioned by the applicant’s written submission, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of his claim. Nor do we see how such written submission relates to either of the grounds of appeal put forward in the notice of appeal.

24.As stated in [12] above, the NRF Claim failed on the facts before the Board which has largely disbelieved the factual allegations upon which the NRF Claim was based. The applicant has not advanced any ground of appeal, properly so called, that tackles the negative findings of fact. Anyway, even if he had, 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 (or that of the Director) afresh. The appellate court is concerned with whether the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong, which questions are to be considered in light of the grounds of appeal raised by the applicant.  See again Nupur Mst v Director of Immigration at [14(2)].

25.In the premises, the applicant did not in the notice of appeal or written submission before us identify any arguable 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

26.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