RE ISLAM MOHAMMED SERAZUL

CACV 222/2018

[2018] HKCA 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 222 OF 2018

(ON APPEAL FROM HCAL 525/2017)

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J U D G M E N T

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

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan given on 5 June 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board dated 10 August 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 8 June 2016 and 17 May 2017 rejecting his claim for non-refoulement protection.

Background

2.  The applicant is a national of Bangladesh.  He came to Hong Kong illegally on 17 August 2014 and was arrested by the police on the same date.  He lodged his claim for non-refoulement protection on 19 August 2014.  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”).

3.  According to the applicant, he and his family were supporters of the Bangladeshi Nationalist Party (“BNP”), but he neither participated any political events of the party nor held any official post in it. 

4.  He said members of AL had threatened and demanded money from him.  In fear of the threats, the applicant left Bangladesh for the Mainland China on 15 August 2014.  He came to Hong Kong two days later. 

5.  By a notice of decision dated 8 June 2016[1], the director rejected the applicant’s non-refoulement claim.  The director’s decision covered the BOR 3 risk[2], the persecution risk[3] and the torture risk[4].

6.  The director also assessed the applicant’s claim further based on the BOR 2 risk[5], and determined it against the applicant on 17 May 2017.

7.  The applicant appealed to the board.  An oral hearing was held on 14 June 2017, during which the applicant answered questions put by the board.  The board found that the applicant’s case was incoherent and inherently incredible.  It was concluded that the applicant was not a witness of truth and that no credence could be attached to any of his assertions.  The board dismissed the appeal on 10 August 2017.

The deputy judge’s decision

8.  On 17 August 2017, the applicant applied to the court for leave to apply for judicial review against the board’s decision.  In the form 86, the applicant, before setting out his own background, advanced the following grounds for seeking relief:

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

(b)   The board acted in a manner that was procedurally unfair;

(c)   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

(d)   The board failed to meet the greater care and duty owed to the applicant.

9.  The applicant further advanced the following two grounds in his supporting affirmation dated 17 August 2017:

(a)   He was only given the hearing bundle for use at the hearing before the board 6 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. 

10.  The judge held an oral hearing on 9 April 2018, and refused to grant leave for the applicant to apply for judicial review on 5 June 2018.  In paragraphs 11 and 12 of the CALL-1 form, the judge rejected the grounds set out in the form 86 on the basis that they were without any substance or specifics.  For the reasons set out in paragraphs 13 to 17 of the CALL-1 form, the judge rejected the applicant’s grounds as set out in his supporting affirmation:

“ 13. For the first complaint, even assuming that indeed he only received the hearing bundle from the Director on 7 June 2017 he has asserted, he would have been familiar with most if not all of the enclosed documents including his non-refoulement claim forms prepared on his behalf, records of his screening process by the Immigration Department as well as the decisions of the Director all of which were already made available to him earlier before when he had legal representation under the Duty Lawyer Service.

14. I also note that he signed his Form 86 without any interpretation, and that at the oral hearing before the Board he was clearly assisted by an interpreter and during which he never raised any issue or complaint to the adjudicator arising from the hearing bundle, and that he was able to give his evidence and answer all the questions put to him by the adjudicator without any difficulty. I am simply unable to see any merit or basis for his complaint arising from the hearing bundle.

15. As for his second complaint about the Board’s improper reliance on COI in assessing state protection and internal relocation alternatives available upon his return to Bangladesh, it is plain that he has just made a bare assertion without providing any specifics in substantiation, and upon careful consideration of those COI referred to by both the Director and the Board, I do not find any basis or merit in this complaint of the applicant either.

16. 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.

17. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I refuse his leave application.”

The appeal

11.  The applicant filed his notice of appeal on 13 June 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)

12.  In compliance with the directions of the court, the applicant lodged his written submissions on 10 August 2018.  In his written submissions, the applicant referred to ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and submitted that high standards of fairness are required in determination of torture claims.

13.  We heard the appeal on 24 August 2018.

Discussion

14.  In Nupur Mst v Director of Immigration [2018] HKCA 524, the Court set out the following general propositions in respect of judicial review of the Board’s decisions in non-refoulement cases:

(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 [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(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 [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(3)   It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirements in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4)   In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5)   Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(6)   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 [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474. 

15.  In the present case, the grounds advanced by the applicant in his notice of appeal and skeleton submissions do not constitute proper grounds of appeal.  None of the arguments raised by him pinpoints any error in the judge’s assessment. 

16.  In substance, he is trying to arguing the matter afresh by repeating arguments which had been duly rejected by the judge without identifying any error on the part of the judge. As stated above, this is not a permissible course.

17.  While high standard of fairness is required in proceedings of this nature, the crucial question before the judge was whether he has raised a reasonably arguable case that the board had failed to satisfy this requirement by reference to the grounds and the materials put forward by him.  After examining the applicant’s grounds and materials placed before him, the judge was not satisfied that there was anything amiss in the process before the board.   

18.  Having considered the materials available before us, as well as the submissions of the applicant, we are of the view that the judge’s observations are justified.  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. Determination of merits of a non-refoulement claim is essentially a matter for the director and for the board, not for the court.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

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