RE MD IQBAL

CACV 149/2019

[2019] HKCA 912

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 149 OF 2019

(ON APPEAL FROM HCAL 220/2018)

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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):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 15 March 2019 refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order in terms of lodging of skeleton submissions, the hearing date for this appeal (originally listed for 15 July 2019) was vacated and this appeal is processed on paper based on the materials already lodged.

3.  By a letter dated 26 March 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

Background

4.  The applicant is a national of Bangladesh.  According to him, he fled to Hong Kong in November 2009[1]. He was arrested by the police on 23 June 2014.  He lodged his claim for non-refoulement protection on 27 June 2014. 

5.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the Muslims because he had criticized the Islamic faith in public.  The facts of this case were summarized by the judge in [2] – [4] of the Form CALL-1 (published as [2019] HKCFI 592).

6.  By a notice of decision dated 14 December 2016, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds (namely, the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5]) and determined the risks against the applicant. 

7.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 28 December 2017, in which the applicant elected to testify.  Having heard the applicant, the Board found his evidence to be unreliable as there were different accounts given by him in the Non-refoulement Claim Form (“NCF”) and his testimony during the hearing.  The applicant failed to seek the non-refoulement protection at the first opportunity available to him outside Hong Kong. Even after his arrival in Hong Kong, he did not seek protection until after he was arrested by the police in 2014. The Board found that state protection was available. Internal relocation was considered to be a viable option for the applicant.  By a decision given on 17 January 2018, the Board dismissed the applicant's appeal/petition.

The judge’s decision

8.  The applicant filed his Form 86 on 12 February 2018, seeking leave to apply for judicial review against the Board’s decision.  In the Form 86, as well as his affirmation in support of the application, the applicant sought to rely on 3 grounds for seeking reliefs, and the grounds were summarized in [10] of the Form CALL-1.

9.  Upon the request of the applicant, an oral hearing was held on 3 January 2019. 

10.  As mentioned earlier, the judge refused the applicant’s application for leave to apply for judicial review.  The reasons in refusing leave were set out in [11] – [18] of the Form CALL-1 as follows:

“ 11. Ground (1) refers to procedural fairness over the provision of the hearing bundle to the applicant allegedly only a few days before the hearing of his appeal to the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby giving him insufficient time to prepare for his appeal.

12. Even if it is true that the hearing bundle indeed came to him late as alleged, and theapplicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, record of his screening interview and the Director’s decision should be well familiar to the applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

13. As for the applicant’s complaint under ground (2), it is clear that the adjudicator did treat the appeal as a rehearing of the applicant’s claim under all applicable grounds when he was invited to give evidence in support of his claim, whilst his complaint of the non-attendance of the Director at his appeal hearing is clearly misplaced, as the mechanism forhis appeal before a different person in the absence of the Director is in fact a safeguard for fairness, and I fail to see how the applicant could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board. There is simply no basis or merit in this ground of the applicant.

14. For his complaint under ground (3) of not being provided with legal representation in his appeal, it has been held by the Court of Appeal that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

15. The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation at his appeal hearing beforethe Board and to answer questions put to him by the adjudicator without difficulty and with the assistance of an interpreter. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

16. The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. In the premises and having proceeded to consider 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 or irrationality 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.

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

The appeal

11.  On 26 March 2019, the applicant filed a notice of appeal.  The applicant advanced the following grounds of appeal in the notice.

(1)  The judge erred materially in law in failing to ensure that a reasoned and considered approach was taken in evaluating the materials (Nazir Qaisar v Torture Claims Appeal Board HCAL 546/2017, 8 February 2018);

(2)  The judge failed to properly consider the applicant’s fear and to conduct sufficient inquiry into the relevant country of origin information (“COI”);

(3)  The judge failed to consider the psychological impact of the facts, including the threats to which the applicant was subject;

(4)  The judge failed to consider UN Committee General Comment No. 2 and to assess whether the authorities had taken effective step to ensure the safety of the citizens; and

(5)  The judge failed to adopt the lawful approach in keeping with the high standard of fairness as stated in Y v Secretary of State for the Home Department [2006] EWCA Civ 1223.

12.  Notwithstanding that he was directed to do so, the applicant did not lodge any written submissions in support of this appeal.

General principles

13.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for 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 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.

(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 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.

(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 requirement in Ladd v Marshall [1954] 1 WLR 1489.  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.

(4)  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.

(5)  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). 

Discussion

14.  In the present case, the Board rejected the applicant’s claim based on its finding against the applicant’s credibility as well as its findings on state protection and the viability of internal relocation.  As we have explained, these findings are within the province of the Board.  The court will not interfere with the same unless they are reversible on the public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

15.  We do not find Nazir Qaisar v Torture Claims Appeal Board (supra) to be of any assistance to the applicant.  In that case, Deputy High Court Judge Woodcock criticized the Board’s handling of the COI on the basis that the COI relied upon by the Board was out of date and the updated information would materially affect the Board’s decision.  In the present appeal, the applicant did not provide any particulars as to which parts of the COI considered by the Board were outdated and how the updated information (if any) would have affected the Board’s decision.  There is no evidential basis for the applicant to challenge the Board’s decision in such respect.

16.  Second, the challenge advanced in the Form 86 only focused on various procedural aspects of the proceedings before the Board. It does not include any arguments remotely associated with the authorities and matters now relied upon in the 5 grounds of appeal. The applicant did not seek leave to bring a judicial review based on these grounds within the time limit prescribed under Order 53 Rule 4(1) and we would not grant leave for him to do so in the absence of any explanation for withholding these from the consideration by the judge. In those circumstances, there is no basis for the applicant to challenge the decision of the judge for want of consideration of these authorities or matters.   

17.  Third, in Re Esmerez Maria Nieva Gelito [2018] HKCA 611 at [16] – [21], this Court (differently constituted) explained the principle for the application of the concept of passive state acquiescence in non-refoulement cases.  Given the finding of the Board on the applicant’s credibility, there is no basis for the application of this in the present case.  The applicant’s reliance on UN Committee General Comment No. 2 is clearly misplaced.  We do not accept ground 4 to be reasonably arguable. 

18.  Finally, in Y v Secretary of State for the Home Department (supra) Keene LJ accepted at [26] that an adjudicator should not take at face value an account of facts proffered by the appellant, no matter how contrary to common sense and experience of human behaviour the account might be.  He was not expected to suspend his own judgment.  In the present case, in light of what was said by the Board at [23], we are of the view that the Board was entitled to find against the applicant’s credibility. 

19.  Having considered the materials before us, we do not find anything wrong with the judge’s decision. We agree that leave to apply for judicial review should be refused.

20.  For these reasons, the appeal is dismissed.