Re Shamim Hossain

CACV 264/2020

[2021] HKCA 200

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 264 OF 2020

(ON APPEAL FROM HCAL NO. 242 OF 2018)

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Before:  Hon Yeung VP and B Chu J in Court

Date of Hearing:  22 February 2021

Date of Judgment:  1 March 2021

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J U D G M E N T

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Hon Yeung VP (giving the Judgment of the Court):

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) made on 30 June 2020 in HCAL 242/2018 refusing leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/ adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 29 January 2018 in which the Board confirmed the decision of the Director of Immigration (“the Director”) dated 11 July 2017.

Background

2.The applicant is national of Bangladesh who first came to Hong Kong in 2006 and subsequently made a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  The application was rejected in March 2011 and he was repatriated to Bangladesh in May 2011.  In August 2014, the applicant re-entered Hong Kong illegally and was arrested by police on 6 February 2015.  He was then referred to the Immigration Department for investigation and on 10 February 2015, he raised a non-refoulement claim on the basis that if he returned to Bangladesh he would be harmed or killed by supporters of a local rival political party Awami League (“AL”) and/or by the police over a false charge against him for the death of a local villager Monir.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2020] HKCFI 1271. 

3.By the Notice of Decision dated 11 July 2017, the Director decided against the applicant’s claim. The Director’s decisions covered the BOR 2 risk[1], the BOR 3 risk[2], the torture risk[3] and the persecution risk[4].

4.The applicant appealed to the Board.  After an oral hearing on 25 October 2017, the Board dismissed the appeal on 29 January 2018.  For the reasons stated in [46] to [56] of the decision, the Board found the applicant’s claims in respect of his political activities and profile in BNP not credible and did not accept that he was ever a member of BNP or that he was involved in or was accused of the murder of Monir.  The credibility of his claim was further undermined by his failure to seek protection upon his arrival in Hong Kong in August 2014 despite previous knowledge of his right to seek protection until his arrest some six months later.  The Board concluded that the applicant was not a trueful witness and that there was no real risk that he will face under any of the applicable grounds upon his return to Bangladesh and his appeal was dismissed.

The Judge’s decision

5.On 14 February 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he simply stated that the decision was unreasonable in that it failed to consider all the matters raised in his claim and/or give adequate reason for its decision without providing any particulars or elaboration.

6.However, on 8 June 2018 the Applicant filed a further affirmation in support of his application, and amongst the attached documents he put forward further grounds for his intended challenge in a statement under the title “Grounds for Petition/Appeal in the High Court of the HK Special Administrative Region”, in which he repeated his claim and cited various authorities and principles of the relevant law, and he provided additional grounds of complaints of the Board’s decision which were duly set out at [10] and [11] of the CALL-1 Form and summarised as below:

(1)  The Adjudicator failed to give any or sufficient reasons for dismissing his appeal;

(2)  The Adjudicator was wrong to find that the applicant had not been subjected to torture and that there was no substantial ground for believing that he would be subjected to torture upon his return to Bangladesh;

(3)  The Adjudicator failed to take into proper consideration all the COI available to the Board or took irrelevant consideration in assessing his claim; and

(4)  The Adjudicator was wrong in making adverse finding against his credibility on the basis that he was unable to produce any documentary evidence of his membership in BNP when there was none required back in 1990 when he first became a supporter.

7.The Judge considered the application on paper and by the CALL-1 Form of 30 June 2020, the application was refused.  The Judge, after summarizing the facts and background of the case and giving due consideration of the decisions of the Director and the Board, gave the following reasons in refusing leave at [14] to [23] of the CALL-1 Form:

“14. The complaint under Ground (1) is plainly without basis as the adjudicator clearly did in paragraphs 44 – 60 of the Board’s decision properly set out her reasons for rejecting his claim and dismissing his appeal.  The Applicant may not agree with her reasons, but it is clearly wrong for him to assert that the adjudicator did not give any or sufficient reasons, and hence this ground is not reasonably arguable.

15.  The same can be said about his complaint under Ground (2), as even on his own case the Applicant had never been subjected to any ill-treatment let alone being tortured between May 2011 when he was repatriated from Hong Kong to Bangladesh and September 2013 when he left Bangladesh for China, and on that basis and on her adverse findings as to his credibility, the adjudicator was clearly entitled to conclude that there was no real risk of him being tortured upon his return to Bangladesh.  As such I do not find this ground reasonably arguable for his intended application.

16.  As for Ground (3), the complaint is just a broad and vague assertion of the Applicant without any particulars or specifics or elaboration, and upon examining those COI available to the Board and referred to by the adjudicator, I do not find any basis or merit in this complaint of the Applicant, and that this ground is not reasonably arguable either.

17.  For the remaining Ground (4) in which the Applicant argues that it was wrong for the adjudicator not to believe that he was a member of BNP on the basis that he was unable to produce any documentary evidence of his membership which COI show that since 2008 prospective members were required to complete membership documents, but as he first joined as a member back in 1990 when there was no such documentary requirement, he submits that the adjudicator therefore erred in her such finding.

18.  Even assuming that it was true that the Applicant did join BNP well before 2008 when there was no such documentary requirement, that was not the only basis or reason for the adjudicator’s adverse finding on his credibility, as it was so amply set out in the decision as follows:

“47. The Board does not accept the Appellant was a member of the BNP for several reasons. Firstly, it found him to be evasive when answering questions about the practicalities of becoming a member of the party. Ultimately, his evidence was that he was not required to complete any form or document to become a member. However, as the Board put to the Appellant in the hearing, information from the Immigration and Refugee Board Canada provides that since 2008 a prospective member is required to meet a leader of the BNP local chapter (usually the Ward leader) and fill up the three parts of the standardized membership document … The Appellant’s clear evidence was that he did not complete any form or document, which in light of the independent information, suggests that he was not officially a member of the BNP. The Board finds the Appellant’s explanation that he was in training and after completion of that training the formalities would have been completed implausible. As it noted in the hearing, his evidence was that he was allegedly being trained for an official position and not just to become a member of the party and the Board finds it implausible that he would not have been required to formally join the party in these circumstances. As such, the Board does not accept the Appellant was a member of the BNP, as he claimed.

48. The Board also finds the Appellant’s evidence regarding his association with the BNP to be unconvincing and inconsistent. It notes prior to the hearing the Appellant had not raised anything in respect of the position of Publicity Secretary, instead claiming that he held no position within the party. However, during the hearing, the Appellant claimed to have performed the role of Publicity Secretary although also claiming that someone else held the position and he was in training for that position. The Board found the Appellant’s evidence through the hearing regarding his alleged position to be confusing and contradictory, with him both referring to himself as Publicity Secretary and this being the reason he was the primary target for harassment by Ali Ahmed due to his role in convincing people to join the party, yet also claiming that he was not the Publicity Secretary but training to allegedly take over this position. The Board finds it implausible that the Appellant, who had been absent from Bangladesh since 2006 until his return to the country in 2011, at which time he allegedly started attending the BNP office, would be given an official position in the party, even in training.

49. It has also taken into consideration the Appellant’s evidence regarding his alleged activities as a member of BNP. Essentially he claimed in the hearing to be a messenger, taking letters, messages and documents to BNP leaders in the district, which the Board finds difficult to reconcile with the alleged position of Publicity Secretary he claimed to be fulfilling, whether officially or in training … The Board finds it concerning the Appellant did not discuss this particular activity when specifically asked earlier in the hearing about any other activities he engaged in to support the BNP apart from being a messenger person, particularly in light of his later evidence that this was the reason he was targeted by Ali Ahmed. The Board found the Appellant’s evidence in respect of this alleged activity to be unpersuasive.

50. In light of the findings above, the Board does not accept the Appellant was a member of the BNP or that he was an active supporter of the party ….

51. The Board also finds the Appellant’s claims regarding the alleged death of Monir, who he was allegedly falsely accused of murdering by Ali Ahmed, an AL leader … to also not be credible ….

52. Furthermore, the Board has taken into consideration the death certificate for Monir ….

53. The Board’s conclusions regarding the credibility of the Appellant’s claims are reinforced by his delay in seeking protection after his arrival in Hong Kong in August 2014, until he was arrested in February 2015 for his illegal stay in Hong Kong.  The Board has taken into consideration the fact the Appellant had previously travelled to Hong Kong in 2006 and had sought protection so therefore had knowledge of his right not to be returned to Bangladesh.  While the Appellant stated that everything is not disclosable all the time and some things need to be kept to oneself, the Board considers the Appellant’s delay in seeking protection until after he was located and arrested by the authorities is not consistent with a fear of serious harm in his home country ….”

19.  It is therefore plain that the adjudicator’s adverse finding on the Applicant’s credibility was clearly not just based on the lack of documentary evidence of his membership or association with BNP but on the combination of a variety reasons as stated above.  In the premises I find this complaint of the Applicant also not reasonably arguable for his intended challenge.

20.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

21.  In the present case and as noted above, the Board rejected the Applicant’s claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision, and in the absence of any legal error or procedural unfairness being shown by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

22.  Furthermore, the fact that it has been established by the Director in his decision 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

23.  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.”

The Appeal

8.On 13 July 2020, the applicant filed his Notice of Appeal against the Judge’s decision in which he provided the following:

“(1)  The learned Justice has erred in concluding that there was no failure to adhere to a high standard of fairness. At common law, there are minimum standard of procedural fairness required in decision making process. The decision maker is under duty to act fairly.

(2)  The learned Justice failed to make sufficient enquiry before finalising the decision.  The learned Justice concluded that the applicant’s grounds for leave to apply for judicial review on both the decision of the Director and the Adjudicator were very broad and vague without advising and /or inviting the applicant for further elaboration.”

9.The applicant had included a document named “written submission of the application” in the appeal bundle lodged on 18 November 2020 in which he stated that his application was made on the ground that the high standard of fairness was not met in his case and by reason of procedural fairness, his case should warrant an oral hearing with legal representation. He further claimed that he would be tortured and/or killed if refouled. 

10.On 25 January 2021, the applicant lodged another set of written submissions with similar claims as his first written submission.  He denied any fabrication of claims and insisted that he had been a dedicated member of the Bangladesh Nationalist Party (“BNP”) since 1990.  He claimed to have helped to recruit new members for BNP and that was the reason why he was targeted by the opposing political group and was framed for committing the crime of murder. 

11.We heard the appeal on 22 February 2021. 

General Principles

12.Before we address the applicant’s case, it is necessary to highlight the following general propositions as stipulated by Lam VP 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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are 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 or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in 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 not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap. 4A). 

Discussion

13.The grounds of appeal as set out in the Notice of Appeal are vague and unspecific assertions against the Judge’s decision.  It is trite that general assertions without particulars cannot be effective grounds to support judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

14.Further, the complaints advanced by the applicant in the written submissions were mere disagreement with the findings by the Board.  The ground relating to the Board’s rejection of his role and involvement in the BNP was canvassed and rejected by the Judge.  With the legal principles stated in paragraph 12 of this judgment, appeal is not a venue for the applicant to regurgitate his argument and it is not the role of this Court to re-examine the Board’s decision unless there are valid public law grounds which we found none in this case.  

15.We are satisfied that the Judge had reviewed the Board’s decision carefully and we do not see any procedural unfairness as alleged by the applicant or any error of law or irregularities in the Judge’s decision.

16.For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.

The applicant, unrepresented, acted in person.