Awal Abdul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 247/2020

[2021] HKCA 41

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 247 OF 2020

(ON APPEAL FROM HCAL NO 1793 OF 2018)

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Before:  Hon Kwan VP, E Toh and G Lam JJ in Court

Date of Hearing:  5 January 2021

Date of Judgment: 8 January 2021

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J U D G M E N T

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Hon G Lam J (giving Judgment of the Court):

1.This is the applicant’s appeal against the decision[1] of Deputy High Court Judge K W Lung on 30 June 2020 refusing to grant leave to the applicant to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) in relation to his non‑refoulement protection claim.

2.The applicant is a Bangladeshi national.  He is 42 years old.  He came to Hong Kong illegally on 2 July 2014, was arrested on the same day, and lodged a non‑refoulement claim on 5 July 2014.  His claim was made on the basis that he would be harmed or killed by the leaders, members or supporters of the Awami League party (“AL”), in which he had taken an active part, as he had since around 2013 switched his support to the rival Bangladesh Nationalist Party (“BNP”).

The Director’s decision

3.By a Notice of Decision dated 13 June 2016, the Director of Immigration (“Director”) rejected the applicant’s non‑refoulement claim based on torture risk,[2] BOR 3 risk[3] and persecution risk.[4] 

4.The Director held that the applicant did not suffer any ill‑treatment that attained the relevant minimum level of severity or any severe pain or suffering within the definition of torture under section 37U(1) of the Ordinance.  The alleged dispute/conflict was a private and personal dispute within the domestic context with no evidence of any official involvement or involvement of the Bangladesh government.  The Director also considered that the enemies’ adverse interest in the applicant, if any, had dissipated through the lapse of time since he left Bangladesh in 2014.  As the applicant ceased to have involvement or connection with BNP activities in Bangladesh, the likelihood of his being subjected to ill‑treatment from his AL enemies was assessed to be low.  The availability of state protection and internal relocation alternatives further lowered or negated the risk.  Thus, the non‑refoulement application was rejected by the Director. 

5.By a Notice of Further Decision dated 29 June 2017, the Director rejected the applicant’s non‑refoulement claim on all applicable grounds including BOR 2 risk[5] as the Director held that the applicant had failed to establish his claim. 

The Board’s decision

6.The applicant appealed to the Board against the Director’s decisions.  Oral hearings were held on 21 and 25 May 2018.  The Board did not accept that the applicant had previously been an AL member[6] and BNP supporter or member[7] because of the significant inconsistencies and problems in his evidence.  For instance, the applicant could not even tell the colour of the AL’s flag at the hearing.[8]  The Board concluded that he had embellished and exaggerated his involvement and links with the AL and its youth wing in an attempt to create a profile for his non‑refoulement claim, and that he had manufactured his claimed support and involvement with the BNP.  The Board also considered that the evidence regarding the alleged past incidents to be inconsistent and unpersuasive.[9]  As a result, the Board found that the applicant would not face a real risk of being killed, kidnapped, threatened or harmed by the AL people, BNP people, the authorities or indeed anyone for reasons related to his links or involvement with the AL, the BNP or their affiliated organizations, if he returned to Bangladesh.[10]  Accordingly, the Board held that the applicant’s claim failed on all applicable grounds and rejected his appeal on 17 August 2018.

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 31 August 2018 to seek leave to apply for judicial review of the decision of the Board.  In an exhibit marked “A” the applicant sets out the following complaints:

(1)  The hearing bundle for the appeal before the Board was only given to him 6 days before the hearing and the majority of the documents in it were in English including the Director’s submissions.  He did not have the money to hire an interpreter.  It was an unfair hearing due to lack of care on the part of the Board to make appropriate arrangements in relation to the hearing bundle.  There was insufficient time for the applicant to prepare for the hearing.

(2)  The applicant was confused as to what was happening at the hearing.

(3)  The Board had relied on source of news which was not officially recognized or was simply hearsay, and had also relied on cases which were outdated.  The lack of credible source of information had resulted in groundless speculations that it would be safe for the applicant to return to his country.

The judge’s decision

8.Although the applicant did not ask for an oral hearing of his application for leave to apply for judicial review, Deputy Judge K W Lung invited him to attend a hearing on 3 January 2020.  The judge considered that the applicant’s affirmation did not set out any grounds in support of his application.  He held that there was nothing to show that the Board had committed any error in its decision and that the applicant had failed to show any reasonable prospect of success for the intended judicial review.  On 30 June 2020 the judge handed down his decision and reasons, dismissing the leave application.  

The appeal to this court

9.In his Notice of Appeal filed on 7 July 2020, the applicant stated his grounds of appeal as follows:

(1)  He will face hardship if he is to return to his home country.

(2)  The Board has significantly relied on the source of news which is not officially recognized or is simply hearsay.  The Board has also relied on cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in the Board making groundless speculations.

10.In his skeleton submissions lodged on 11 November 2020, the applicant has merely set out certain general principles and quotations from cases.  It is said that high standards of fairness are required in the determination of a torture claim, that on a judicial review the court should subject the decisions below to rigorous examination and anxious scrutiny to ensure that the required high standards of fairness have been met, and that the applicant should be given every reasonable opportunity to establish his claim.  But the document does not explain how these quotations apply to his case.

11.The applicant appeared at the hearing of the appeal and confirmed that he had nothing to add to the written materials.

Discussion

12.The general principles regarding an appeal in a case such as the present have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision‑makers are the Director and the Board.  While in non‑refoulement cases the court will adopt a heightened standard in scrutinizing the decision of the Board having regard to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information materials, risk of harm, state protection and viability of internal relocation are matters primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or his decision was otherwise plainly wrong.

13.As can be seen from what has been said about his Notice of Appeal and skeleton submissions for the appeal above, the applicant has wholly failed to point to any such error in the judge’s decision. 

14.Further, while it may be said that the judge should not have said that the applicant did not set out any grounds in his affirmation, we have ourselves considered the grounds advanced and come to the view that they did not have any prospects of success.

15.The complaint about the late delivery of the hearing bundle is untenable.  The Director has complied with the Practice and Procedure Guide of the Administrative Non‑refoulement Claims Petition Scheme which required him to send the hearing bundle to the applicant not later than 5 working days[11] prior to the hearing.  Moreover, most of the documents contained in the bundle were previously seen or submitted by the applicant.  More importantly, the applicant was legally represented at the hearings before the Board which were conducted on 21 and 25 May 2018.  As recorded in the judge’s decision, the applicant also confirmed to the judge that he had been treated fairly when he appeared before the immigration officer and the Board.  In our view the applicant has failed to establish that he had any material difficulty in proceeding with his appeal before the Board or that the Board’s process was in any way unfair or lacking in due care for his interests.  There is no basis to contend that the applicant was confused at the hearing, nor did he give any particulars as to what he was confused about or how any confusion affected the hearing.  As stated in his affirmation, he considered that he had answered all the questions of the Board honestly.

16.Ultimately, the Board’s assessment of the applicant’s credibility was founded on a number of problematic and inconsistent areas in his evidence as identified in the Board’s detailed decision.  The applicant has not raised any specific ground for impugning the Board’s findings.

17.As to the source of news which, the applicant says, is not officially recognized or is outdated or mere hearsay, again no particulars have been given by the applicant.  In any event, given that the Board had rejected the applicant’s claims about his political associations and the risks he faced, any error in its further findings on the current conditions in his country of origin would not affect the outcome.

18.For these reasons, the applicant’s appeal is dismissed.

[1]   [2020] HKCFI 1369.

[2]   This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3]   This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[4]   This refers to the risk of persecution with reference to the non‑refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees.

[5]   This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[6]   §§26-54.

[7]   §§55-72.

[8]   §50.

[9]   §73.

[10]  §112.

[11]  As defined in the guide, working day excludes Sundays and public holidays but does not exclude Saturday.