RE HOSSEN KAZI MAHABUB

CACV 285/2018

[2018] HKCA 764

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 285 OF 2018

(ON APPEAL FROM HCAL NO 1111 of 2017)

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J U D G M E N T

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Hon Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam given on 22 June 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 8 December 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 1 September 2016 and 2 August 2017 rejecting his non-refoulement claim.

Background

2.  The applicant is Bangladesh national.  He arrived in Hong Kong on 4 June 2014 and was permitted to remain as a visitor for 14 days.  He overstayed illegally and was arrested by the police on 9 July 2014.  He lodged a non‑refoulement protection on 12 July 2014.

3.  His claim was based on the fear that, if he returned to Bangladesh, he would be harmed, or even killed by the members of Awami League (“AL”) because he was a senior member of Jatiyatabada Chhatra Dal, a student wing of the Bangladeshi Nationalist Party.  It was his case that he started encountering problem with the AL people in 2004 when he was falsely charged of criminal damage of the vehicle of the leader of AL.  In fear of being arrested, he fled to Dhaka and lived there uneventfully for about five years.  After AL came into power in 2008, the AL people started to go to his family home and harassed his family members.  They also laid false criminal charges against him and assaulted his father and brother.  Whereas he contemplated to leave Bangladesh in November 2013 by obtaining a passport, he only did so in June 2014 as described.

4.  The Director assessed the applicant’s claim on all applicable grounds, namely,  the BOR 3 risk[1], the persecution risk[2] , the torture risk[3] and the BOR 2 risk[4].  His claim was rejected by the Director.

5.   The applicant then lodged a petition/appeal with the Board.  The Board dismissed his appeal on 8 December 2017.  The Board found that his case inconsistent and incredible and the documents provided by him unreliable.  It was concluded that he was not a witness of truth and that no credence could be attached to any of his assertions.  The Board rejected his case in its entirety.  It was assessed that there was not a real risk that he would face any proscribed forms of harm should he return to Bangladesh.

6.  The applicant filed his Form 86 on 20 December 2017, seeking leave to apply for judicial review against the Board’s decision.  The applicant advanced the following grounds for seeking relief:

(1)  The Board had unlawfully fettered its discretion by refusing the applicant’s appeal;

(2)  The Board acted in a manner that was procedurally unfair;

(3)  The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, and there were procedural errors or unfairness; and

(4)  The Board failed to meet the greater care and duty owed to the applicant.

7.  Two further grounds were submitted in his supporting affirmation dated 20 December 2017:

(a)  He was only given the hearing bundle for use at the hearing before the board six days prior to the hearing, rendering him insufficient time to prepare for the hearing; and

(b)  The Board relied on the source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated considering the dramatic change in Bangladesh.

8.  The judge held an oral hearing on 1 June 2018, and refused to grant leave for the applicant to apply for judicial review on 22 June 2018.  For the reasons set out in [35] – [45] of the Form CALL‑1[5], the judge concluded that there was no realistic prospect of success in the intended application for judicial review:

“35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

37. The applicant complained that he received the appeal bundle only a few days before the appeal hearing.

38. According to para 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para 12.6 of the ‘Practice and Procedural Guide of the Administrative Non‑refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the applicant no later than 5 working days prior to the date of the hearing.

39. The applicant said he received the appeal bundle 8 days prior to the appeal hearing scheduled on 1 November 2017 (Wed). In that 8-day period, the were 6 working days (excepting a Sunday and a public holiday on 28 October 2017) prior to the appeal hearing. Thus, the bundle was served on the applicant in time.

40. The appeal bundle would consist mostly of documents that had been seen or submitted by the applicant during the first‑tier screening of his claim by the immigration officer.

41. In court, the applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

42. A few days’ time certainly was not a long period. However, the applicant’s case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. A few days could be sufficient for reasonable and diligent preparation on the part of the applicant. The applicant failed to show he really needed more time to prepare for the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the applicant was confused as to what happened in the appeal before the Adjudicator.

43. The applicant mentioned he was not legally represented then. He had been represented by the Duty Lawyer Service up to the Director rendered his decision on 1 September 2016. The applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal repeatedly stated that an applicant of non‑refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.

44. The other complaints raised by the applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the applicant’s complaints can stand.

45. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the applicant in the screening process. The applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator’s report showed he was acquainted with the facts of the applicant's case. He considered the applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the applicant’s non-refoulement claim.” (footnotes omitted)

The appeal

9.  The applicant filed his notice of appeal on 4 July 2018.  In the notice of appeal, the applicant stated that:

“. . . the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

10.  In his written submission lodged on 18 September 2018, the applicant submitted that high standards of fairness are required in determination of torture claims.

11.  We heard the appeal on 25 October 2018.  At the hearing, he requested that his case be considered favourably so that he could stay a bit longer before departing from Hong Kong. He reiterated that there was a lot of problems in his country.

Discussion

12.  The following propositions in respect of judicial review of the Board’s decisions in non‑refoulement cases set out in Nupur Mst v Director of Immigration[6] are relevant to the present appeal:

(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 the 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: see Re Zunariyah[7]; Re Qadir Sher[8]; Hounkpedji Messanh v Torture Claims Appeal Board[9]; Re Rizwan alias Rizwan Gulistan[10]; Re Lakhwinder Singh[11]and Re Masoom Parvez[12].

(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 were 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: see United Muslim Association of Hong Kong v Yusuf Yu[13]; 秦錦釗及香港特別行政區[14]; 秦錦釗及東區法院裁判官陳炳宙[15]; 黄碩雄及范荏愷[16]; 關媛薇[17]; and陳碩謙對醫院管理局[18].

(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).  See: Re Qadir Sher[19]; Re Rizwan alias Rizwan Gulistan[20]; Re Ali Haider[21]; Re Fitri Ambarwati & Maria Zubair[22]; and Re Muhammad Usman[23].

13.  The judge, after rigorous examination and anxious scrutiny, did not find any legal error or procedural unfairness in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the Board’s findings.

14.  By submitting that he will face hardship if he were to return to his home country, the applicant is in effect inviting this court to revisit the assessment made by the Board. This court has repeatedly emphasized that evaluation of the claim, assessment of evidence, COI materials risk of harm, state protection and viability of internal relocation are all matters within the province of the Board and the Director, the primary decision‑makers.

15.  Having considered the materials available before us, as well as the submissions of the applicant, we do not find any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

16.  For these reasons, we dismiss the appeal accordingly.