MASTOFA MOHAMMAD GOLAM v. DIRECTOR OF IMMIGRATION AND ANOTHER

CACV 492/2019

[2020] HKCA 403

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 492 OF 2019

(ON APPEAL FROM HCAL NO 1217 OF 2018)

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J U D G M E N T

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Hon Alex Lee J (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 16 October 2019[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a 40-year-old national of Bangladesh who entered Hong Kong illegally on 30 October 2014.  He was arrested by the police on 31 October 2014.  He raised the non-refoulement claim on 2 November 2014 on the basis that he would be harmed or killed by some members of the rival party Awami League (“AL”) if he were repatriated to Bangladesh as he is a member of Jamaat-e-Islami.

The Director’s decisions

3.  On 18 June 2015, the Director rejected the applicant’s non-refoulement claim which was based on torture risk^[2], BOR 3 risk^[3] and persecution risk^[4].  The Director considered that the low intensity and low frequency of ill-treatment from the local AL members in the past is indicative of low future risk of harm upon the applicant’s return to Bangladesh.  Besides, the problem between the applicant and the local AL members was purely a personal and private matter.  Furthermore, there was no information to show that any government officials or anyone acting in an official capacity were involved in the dispute, nor was there anything to indicate that the state had been involved in, been indifferent to or provided any form of encouragement to the applicant’s enemies in threatening or harming him.  During his stay in village Kumari Gram, he maintained a normal life and did not suffer from any harm.  Also, the Director found that the availability of reasonable protection and internal relocation alternatives further lowers or negates the level of risk. 

4.  By a notice of further decision dated 30 June 2017, the Director rejected the applicant’s non-refoulement claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk^[5].  The Director considered that the applicant has failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated upon his return to Bangladesh.

The Board’s decision

5.  On 5 March 2018, the applicant attended the hearing of the appeal against the Director’s decisions. The Board found that there was no evidence to show that the harm or threat of harm was instigated by any one qua the capacity of the government of Bangladesh.  The applicant had not suffered serious ill-treatment or severe injury or serious harm which would place him at any substantial risk of cruel, inhuman or degrading treatment or punishment or risk of persecution in the future.  The Board considered that the applicant could escape from the risk, if any, by internal relocation within Bangladesh.   The Board was also of the view that the applicant’s claim failed independently for a lack of credibility[6].  As a result, the appeal was dismissed on 5 June 2018. 

The Judge’s decision

6.  The applicant filed a Form 86 and a supporting affirmation on 28 June 2018 seeking leave to apply for judicial review against the decisions of the Director and Board.  Briefly stated, the grounds relied by the applicant in support of his application included: (1) the Director has not given sufficient consideration to state acquiescence; (2) the Director has failed to give appropriate weight to the Country of Origin Information (“COI”) in the applicant’s favour; (3) the Director only selected the COIs which suited his pre-occupied opinion; (4) the Director has failed to maintain high standard of fairness; (5) the Board has not made sufficient enquiry into the matter; (6), the adjudicator required him to provide evidence without appreciating that he was unable to do so; and (7) the Board has failed to give the applicant sufficient chance to arrange evidence to prove his case.

7.  The Judge heard the leave application on 19 December 2018.  In dismissing the leave application on 16 October 2019, the Judge noted, as regards (1) to (5) above, that the applicant’s grounds were based on his opinions and comments without any evidence in support.  The Judge said, as regards (6), that the adjudicator was entitled to require the applicant to adduce evidence to prove his case.  If the applicant had any difficulties in getting the evidence, he could have told the adjudicator and the adjudicator would make arrangement in the hearing.  As regards (7), the applicant was unable to say what evidence he had intended to arrange.  Therefore, the Judge assessed that the applicant has no reasonable prospect of success in the intended judicial review.

The grounds of appeal

8.  The applicant filed a Notice of Appeal against the decision of the Judge on 24 October 2019.  He says that he is not satisfied with the judgment as the Judge failed to show any reasonable cause for refusing his application and did not consider his points.

9.  The grounds of appeal stated in his Notice of Appeal can be summarized as follows:

(1)     The Director and the Board dismissed his claim without real screening.  They did not provide him with qualified interpreter and good helpful lawyer.  When the applicant could not state his problem or the officer could not understand his case properly, wrong decision was given.

(2)     The Director did not send any representative to the applicant’s country.  If they have investigated in his country, they would not have cancelled his claim.

(3)     He did not have enough time for his oral hearing.  He failed to understand the English hearing bundle prepared by the Director and the interpreter did not read the bundle to him.

Legal Principles

10.  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[7].

11.  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.

12.  In determining an appeal, this court focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

13.  In respect of new arguments, this court will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

Analysis and disposition

14.  According to Re Moshsin Ali[8], the applicant cannot seek judicial review against the Director’s decision once an appeal to the Board is pursued by a claimant as the decision of the Board will supersede the decision of the immigration officer.  Thus, the grounds pertaining to the complaints against the Director’s decisions are bound to fail. 

15.  The applicant contended that the Judge failed to show any reasonable cause to refuse his application and did not consider his points.  As a matter of fact, however, the Judge has sufficiently considered the applicant’s grounds and explained the reasons for refusing to grant leave in paragraphs 11 to 21 of his decision.  The Judge’s decision is well founded.

16.  The applicant’s ground relating to the lack of legal representation is without merits.  The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings: Re Paswan Shibu Lal^[9].  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. 

17.  As regards the complaint about the lack of interpretation, in fact interpreter services were provided at hearings at every stage.  The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar[10].  Besides, all court documents including the notice of appeal and written submissions filed by the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. 

18.  The applicant fails to demonstrate that there are errors of law or procedural unfairness or irrationality in the decision of the Board.  In fact, he submitted at the hearing of his leave application before the Judge that he had no complaints against the adjudicator.  He also fails to show that the Judge has made any errors of law or failed to take account of relevant matters already placed before the court or is otherwise plainly wrong. 

19.  There is no merit in any of the applicant’s grounds and no prospect of success in the intended application for judicial review.  Accordingly, we dismiss the appeal.

[1] [2019] HKCFI 2534

[2] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[4] 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.

[5] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[6] §§32-36 TCAB

[7] [2018] HKCA 524 at §14

[8] [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45

[9] CACV 284/2017, para 21

[10] [2019] HKCA 658