CACV 487/2020
[2021] HKCA 1427
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 487 OF 2020
(ON APPEAL FROM HCAL NO 703 OF 2018)
________________________
| | Md Shajahan Ali | Applicant |
| | and | |
| | Torture Claims Appeal Board | Putative Respondent |
| | and | |
| | Director of Immigration | Putative Interested Party |
________________________
Before: Hon Kwan VP, Barma JA and Lisa Wong J in Court
Date of Hearing: 20 September 2021
Date of Judgment: 29 September 2021
________________________
J U D G M E N T
________________________
Hon Kwan VP (handing down the Judgment of the Court):
1. On 19 December 2019, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicant to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim and dismissed the leave application[1]. On 10 September 2020, the judge granted an extension of time for the applicant to appeal against his decision[2]. The applicant filed a Notice of Appeal on 18 September 2020.
2. The applicant is a national of Bangladesh. He is 42 years old. He entered Hong Kong illegally on 12 July 2009 and was arrested by police on the following day. He lodged his torture claim on 17 July 2009 which was subsequently treated as a non-refoulement claim under the unified screening mechanism. His claim was made on the basis that he will be harmed or killed by the rival political party Awami League (“AL”) and he was wanted by the Bangladeshi police for murder.
The Director’s decisions
3. By a Notice of Decision dated 13 February 2015, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on torture risk[3], BOR 3 risk[4] and persecution risk[5].
4. Taking into account the absence or low intensity and low frequency of the past ill-treatments from the AL members, the Director assessed that the level of future risk of harm upon the applicant’s return is low. The Director further found that there is no indication to support the applicant’s fear that the Bangladeshi government or police would look for or arrest him as he had encountered no problem upon his previous departure and subsequent re-entry into Bangladesh. The Director also considered that even if the alleged threats and the perceived risk of harm are true, they only arose from personal dispute which have nothing to do with the whole AL and/or the Bangladeshi government or its authorities. Moreover, the Director held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.
5. By a Notice of Further Decision dated 15 May 2017, the Director rejected the applicant’s claim on BOR 2 risk[6] in the absence of response from the applicant to the invitation to submit additional facts which may be relevant to his non-refoulement claim.
The Board’s decision
6. The applicant’s appeal against the Director’s decisions was heard before the Board on 12 October 2016 and 30 June 2017. The Board found there is nothing to suggest that the AL members were behind the alleged attacks or that the attack on the applicant has anything to do with his political activities. The Board also rejected the applicant’s evidence on extra-judicial killings as the relevant evidence is hearsay information lacking in particulars. The applicant had been able to move freely in and out of the country since he fled from his village, which reflected that the hearsay evidence about the extra-judicial killings is unreliable. The Board concluded that the applicant had failed to establish that he would be at risk of any harm that warrants non-refoulement protection on his return to Bangladesh. Thus, the Board rejected the appeal on 27 October 2017.
The intended judicial review
7. The applicant filed a Form 86 and an affirmation on 23 April 2018 to seek leave to apply for judicial review against the decision of the Board. His application was filed outside of the three-month requirement under Order 53, rule 4 of the Rules of the High Court (Cap 4A).
8. He put forward the following grounds for his intended challenge:
(1) the Board erred in failing to apply high standards of fairness by not arranging country of origin (“COI”) information of his home country and by not arranging any medical examination before declaring the applicant’s credibility as questionable;
(2) the Board failed to apply procedural fairness in assessing his claim; and
(3) the Board failed to take into consideration the applicant was not legally represented in his appeal before the Board and did not advise that he could complain.
The judge’s decision
9. The applicant appeared before DHCJ Bruno Chan at the oral hearing on 8 October 2019. The applicant explained that he had previously filed his first Form 86 through his lawyer under HCAL 237/2018 when he was being detained at the Castle Peak Bay Immigration Centre and he withdrew his application on his lawyer’s advice that he could file another Form 86 after being released. The judge was not satisfied with the applicant’s explanation for the delay as it was not supported by any documentary evidence and he would still have been about three weeks late with his then Form 86 in any event.
10. As for the merits of the intended judicial review, the judge decided that ground (3) is not reasonably arguable as the high standard of fairness does not require that a non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings and the applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty and with ample opportunity to produce further evidence in support of his claim. Furthermore, the judge considered that the applicant’s other grounds are without basis as they are just bare assertions not supported by any particulars or specifics or elaboration.
11. The judge therefore refused to extend time for the applicant to file his application for leave to apply for judicial review and dismissed the leave application on 19 December 2019.
Grounds of appeal
12. The applicant stated the following grounds of appeal in the Notice of Appeal filed on 18 September 2020:
(1) The judge was wrong in law in holding that there was no state acquiescence or involvement;
(2) The judge failed to provide detailed reason in support of his decision; and
(3) The country of origin information was ignored in the preparation of his judgment.
13. His further contentions in his written submissions may be summarized as follows:
(1) The judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions of the Director and the Board;
(2) The judge reviewed the matter lightly;
(3) The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the Director’s decision;
(4) The judge might not have analyzed the applicant’s claims properly;
(5) It is unreasonable for the judge to refuse the applicant’s appeal;
(6) The Board failed to give sufficient chance to the applicant to arrange the relevant evidence;
(7) The applicant will face hardship if he returns to his home country and the Board had significantly relied on source of news which is not officially recognized or is simply hearsay;
(8) The Board was irrational in failing to evaluate and make a finding as to whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh;
(9) The Board was irrational in failing to analyse and assess whether state protection exists in Bangladesh and in misdirecting himself as to the extended meaning of state protection.
14. At the hearing of the appeal, the applicant claimed that he was married to a Hong Kong permanent resident in September 2017 and he expected to obtain a Hong Kong Identity Card in two to three weeks. This was not mentioned to the judge at the oral hearing on 8 October 2019, nor did he produce any evidence to this court to support his claim of marriage which he said took place four years ago.
Legal Principles
15. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration[2018] HKCA 524 at §14.
16. 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.
Analysis and disposition
17. The issue of state acquiescence or involvement was not raised before the judge in his application. The same applies to his assertion before this court that he was married to a Hong Kong permanent resident and was expected to obtain a Hong Kong Identity Card in a matter of weeks. The Court of Appeal will not entertain new arguments which are fact and evidence sensitive and have not been canvassed at the Court of First Instance and for which leave has not been sought within time. In any event, the applicant failed to adduce any evidence in support of this ground.
18. The applicant’s complaint about the judge’s failure to provide detailed reason in his decision is untenable as the judge did provide detailed explanation in paragraphs 16 to 23 of his decision dated 19 December 2019 and his reasons are well justified.
19. As for the ground pertaining to the judge’s ignorance of the COI information, it has been well established that 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. In the present case, the applicant failed to demonstrate that there is any error of law or procedural unfairness or irrationality in the Board’s decision despite his bare assertions in his written submissions.
20. The applicant’s contention that the Board failed to give sufficient chance for him to arrange the relevant evidence has no basis as he had attended two hearings before the Board on 12 October 2016 and 30 June 2017. There would be more than sufficient time for the applicant to arrange the necessary evidence between the two hearings and he has not adduced any new evidence to the court in his leave application.
21. The applicant also submitted that the Board was irrational in failing to evaluate whether there is a consistent pattern of gross and mass violation of human rights in Bangladesh and in failing to assess whether state protection exists in Bangladesh. These submissions were not raised in his previous application made at the court below. An appeal is not the occasion for an application to introduce new grounds after the original grounds failed at the court below[7]. In any event, it is the duty of the applicant to substantiate his non-refoulement claim. The applicant has not adduced any evidence which points to a case of a consistent pattern of gross and mass violation of human rights in Bangladesh. It is also not necessary for the Board to assess the availability of state protection when it has come to the conclusion that the applicant has not established that he would be at risk of any harm that warrants non-refoulement protection.
22. For the above reasons, the appeal is devoid of merit. We therefore dismiss the appeal.
| (Susan Kwan) | (Aarif Barma) | (Lisa Wong) |
| Vice President | Justice of Appeal | Judge of the Court
of First Instance |
The Applicant (Appellant), appearing in person
[1] [2019] HKCFI 3011; [8-13]
[2] [2020] HKCFI 2167
[3] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[4] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] 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 and its 1967 Protocol.
[6] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[7] Re Qadir Sher[2018] HKCA 160 at §11