RE RAHAMAN MOHAMMAD FAZLUR

CACV 322/2018

[2018] HKCA 815

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 322 OF 2018

(ON APPEAL FROM HCAL NO. 622 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 10 July 2018 in HCAL 622/2017 refusing leave to the applicant to apply for judicial review.

2.  Because of the non-compliance with the direction for lodging skeleton submission within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 27 November 2018), the applicant would be deemed to have waived his right to have an oral hearing.  This appeal is dealt with on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The applicant is a national of Bangladesh.  He arrived in Hong Kong on 27 February 2016 as a visitor and was permitted to stay until 13 March 2016.  He did not leave on that date and overstayed.  He surrendered to the Immigration Department on 14 March 2016 and lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by a money lender called Anwar Hossain for his failure to repay a loan.  The other alleged threat came from a man called Shaukat who was involved in a murder case.  The applicant had given evidence in court against Shaukat and as a result he was sentenced to imprisonment and Shaukat threatened to harm the applicant.

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1474.  We shall not repeat the same here.

5.  By a Notice of Decision dated 31 May 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk. 

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  The Board dismissed the appeal on paper on 8 September 2017.  The Board considered that the alleged loan matter and the revenge dispute were purely private disputes and the alleged ill-treatments suffered by the applicant did not attain the minimum level of severity that warranted non refoulement protection.  The risk was further lowered with the possibility of internal relocation.  Having considered the totality of the evidence, the Board found that the applicant had failed to establish his non-refoulement claim under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decision of the Board. The Form 86 filed on 14 September 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant set out 9 grounds for judicial review against the decision of the Board, namely that the Board had:

(1)  failed to make sufficient and proper inquiry into the Country of Origin Information (“COI”).

(2)  failed to take into account and put sufficient weight on the relevant COI; cherry picked and put weight on COI which was of little or no relevance to the applicant’s case.

(3)  failed to evaluate and make a finding if a consistent pattern of gross, flagrant or mass violations of human rights existed in Bangladesh.

(4)  failed to assess if state protection exists in Bangladesh.

(5)  made irrational decision by taking into account irrelevant considerations and failed to take into account on facts and inferences that were favourable to the applicant.

(6)  failed to call for psychological and psychiatric reports of the applicant.

(7)  applied incorrect standard of proof in making decision.

(8)  failed to ensure that the applicant had proper legal representation.

(9)  failed to arrange an oral hearing for the appeal before the Board.

8.  On 10 July 2018, the Judge gave her decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [17] – [23] for her refusal to grant leave:

“ Leave to apply for judicial review

17. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

18. There are nine grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

19. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up‑to‑date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did consider objective, relevant and up-to-date COI and found State protection available as well as internal relocation a viable option without undue hardship therefore, these grounds are not arguable.

20. In ground 9, the adjudicator is accused of procedural impropriety and unfairness by failing to conduct an oral hearing. Having read both the Directors decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained. The adjudicator went on to show that he fully understood the applicant’s case and evidence, considered the law and legal principles before finding that the applicant had not made out a case for non-refoulement protection.

21. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected the BOR 2 risk claim on 31 May 2017 at the same time as the other risk claims.

22. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

23. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.”

The Appeal

9.  The Notice of Appeal was filed on 19 July 2018.  In the applicant’s supporting affirmation filed on the same day, he advanced the following grounds of appeal:

“ (1) The Honorable Deputy High Court Judge Madam WOOKCOCK was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Deputy High Court Judge Madam WOOKCOCK failed to provide detailed reason in support of her decision.”

10.  Exhibit A annexed to the applicant’s supporting affirmation contained various grounds for judicial review against the Director and the Board.  They were canvassed at the lower court hearing and were duly rejected by the Judge.

Discussion

11.  Ground 1 lacks particulars and substance.  The Judge found at [19] of the CALL-1 Form that the Board, after due consideration of the objective, relevant and up-to-date COI, came to the right conclusion that State protection was available.  We do not see any error of law in the Judge’s finding and Ground 1 is not reasonably arguable.

12.  Ground 2 is a bare allegation unsupported by any reason or argument.  As it is apparent from the parts of the judgment as set out in paragraph 8 above, this allegation is without merit.  The Judge clearly explained the reasons for her decision in those paragraphs of the CALL-1 Form.

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