RE HOSHEN MOHAMMAD MONIR

CACV 587/2018

[2019] HKCA 657

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 587 OF 2018

(ON APPEAL FROM HCAL NO. 407 OF 2018)

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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 Josiah Lam (“the Judge”) on 11 December 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 11 January 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 1 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged, in accordance with the practice adopted by this Court: 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 background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2573.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh. He entered Hong Kong illegally on 19 June 2014 by boat and was arrested by the police on the same day.  On 27 June 2014, the applicant lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by members of Awami League (“AL”) and Chatra League (“CL”) because he supported the Bangladesh Nationalist Party (“BNP”) and refused to join AL or CL.

5.  By a Notice of Decision dated 8 July 2016, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk. By a Notice of Further Decision dated 3 August 2017, the Director rejected his claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 21 December 2017, the Board dismissed the appeal on 7 March 2018.  The Board found that many aspects of the applicant’s evidence were highly suspicious, exaggerated and inconsistent with the objective country of origin information (“COI”) or his previous written statements.  The alleged attacks suffered by the applicant were not politically motivated and was not a reason why the applicant had to flee Bangladesh to come to Hong Kong.  The Board took the view that the applicant fabricated his story to corroborate his claim, see [13] of the Board’s decision.  The Board further held that the availability of state protection and possible internal relocation would lower the risk that the applicant alleged that he would face.  With the aforesaid reasons, the Board found that the applicant had failed to establish his case on non-refoulement claim on all applicable grounds. 

7.  On 13 March 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision and he set out the following grounds to support his intended challenge:

“(1) The Board had unlawfully fettered its discretion by refusing his appeal on the grounds that they did not satisfy the requirement;

(2) The Board acted in a procedurally unfair manner in dealing with his appeal;

(3) The Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness; and

(4) The Board failed to meet the greater care and duty owed to a self-represented claimant.”

8.  In the supporting affirmation filed on 13 March 2018, the applicant further complained that there was insufficient time for him to prepare for the appeal hearing before the Board and a lack of language assistance throughout the case.

The Judge’s decision

9.  On 11 December 2018, the Judge gave his 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 [33] – [45] for his refusal to grant leave:

“ Discussion

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

34. 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’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.” (CACV 219/2018) [2018] HKCA 570, para 14(1))

35. The Applicant mentioned he was not legally represented for appeal to the Board. He had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 8 July 2016.

36. 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 (CACV 284/2017 Re Paswan Shibu Lal, para 21). The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

37. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when he was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

38. The Applicant complained he received the appeal bundle only on 14 December 2017 before the Board hearing scheduled for 21 December 2017.

39. 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.

40. The appeal bundle was served on the Applicant 7 calendar days (or 6 working days) prior to the Board hearing. It was served on the Applicant in time.

41. The bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

42. A few days were certainly not a long period but could still 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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

43. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was certainly not confused.

44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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 was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

Conclusion

45.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

10.  In the Notice of Appeal filed on 18 December 2018, the applicant set out following grounds of appeal:

“My problem in my country has not solved, and it is my life threat. But Director of Immigration, Adjudicator of Torture Claims Appeal Board cancel my claim without any perfect reason, they not think (sic) about my life.”

Discussion

11.  The ground of appeal cannot constitute valid basis for reversing the decision of the Judge.  There is no complaint against the reasoning reflected in the Decision of the Judge.  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’s decision, the appeal should be dismissed.  Further, 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: Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6). The ground of appeal is plainly not arguable and doomed to fail.

12.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonable arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter of the Board, not for the Court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

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