RE SHARIFUL ISLAM

CACV 423/2019

[2020] HKCA 342

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 423 OF 2019

(ON APPEAL FROM HCAL 374/2018)

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JUDGMENT

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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 Josiah Lam (“the Judge”) given on 4 September 2019 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 1 March 2018 upholding the decisions of the Director of Immigration (“the Director”) dated 11 March 2016 and 25 November 2016 rejecting the applicant’s claim for non-refoulement protection in Hong Kong.

2.  Due to the non-compliance with an unless order of 14 November 2019 in terms of lodging skeleton submissions, the hearing date for this appeal was vacated and this appeal is processed on the papers based on the materials already lodged.

3.  This is our judgment.

Background

4.  The applicant is a national of Bangladesh.  According to the records of the Director, the applicant attempted to enter Hong Kong on 5 November 2011.  Due to the lack of visa, he was refused permission to land.  He then entered Hong Kong illegally and was arrested by the police on the next day.  He raised a claim under article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Claim”) by way of written representation dated 8 November 2011.  The Torture Claim was taken to be a non-refoulement claim and processed under the unified screening mechanism.

5.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by the people of Awami League because of his support to and affiliation with their rival, Bangladesh National Party.  The background facts of this case were summarized by the Judge in [1] – [10] of the Form CALL-1 ([2019] HKCFI 2166).

6.  By two notices of decision dated 11 March 2016 and 25 November 2016[1], the Director assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The former notice covered the BOR 3 risk[2], the persecution risk[3], and the torture risk[4]; and the latter the BOR 2 risk[5].

7.  The applicant lodged an appeal/petition to the Board against the Director’s decisions.  An oral hearing was held on 12 December 2016.  At the hearing, other than confirming the truth and correctness of the evidences in the hearing bundle, he elected not to give evidence.  By a decision dated 1 March 2018[6], the Board affirmed the decisions of the Direction.  It considered that the applicant’s assertion of attacks was not supported by any objective evidence[7]. Even if there were such attacks as alleged, the applicant’s injury allegedly inflicted by his enemies did not attain the minimum level of severity of pain and suffering[8].  Nor was there any evidence suggesting involvement of the state or any public officials[9], or acquiescence by the state[10].  Upon considering the relevant country of origin information (“COI”), the Board was satisfied that state protection was available[11].  Internal relocation was also a viable option for the applicant[12].  As a result, it was concluded that the applicant failed to establish that he had a well-founded fear or that he would be subjected to any genuine risk of ill-treatment if refouled[13]. Finally, the Board also questioned the applicant’s credibility as he failed to raise his non-refoulement claim at the first opportunity outside Hong Kong[14]. 

The Judge’s decision

8.  On 8 March 2018, the applicant applied to the court for leave to apply for judicial review.  The applicant set out his intended grounds for seeking relief in his Form 86 as follows:

“ (1) The [Board] had unlawfully fettered [its] discretion by refusing the applicant’s appeal on the grounds that [it] did not satisfy the requirement[;]

(2) the [Board] acted in a procedurally unfair manner in dealing with the [applicant’s] appeal;

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

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

9.  The applicant elaborated his grounds in the Form 86 and his supporting affirmation filed on the same date as follows:

(a)  The majority of the documents contained in the hearing bundle were in English.  The hearing bundle was also delivered to him late. Consequently, he suffered from a lack of understanding and confusion on what happened during the hearing. 

(b)  He answered all questions with honesty, and it aggravated him that his credibility was found questionable.

(c)  The Board relied on the COI materials, which were not officially recognized, or simply hearsay.  It also relied on cases that were outdated considering the dramatic changes. 

10.  Upon the request of the applicant, an oral hearing was scheduled to be held on 22 August 2018.  The applicant did not attend the hearing.  He wrote to the court on 27 August 2018 explaining (with the support of a medical certificate) that his absence was due to his illness at the time.  Another hearing was fixed, and the applicant duly attended the re-fixed hearing on 27 September 2018.

11.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave for judicial review against the Board’s decision were set out in [30] – [44] of the Form CALL-1 as follows (footnotes omitted):

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

31. 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’. 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.’

32. The Applicant said there was no legal representation for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 11 March 2016.

33. 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. The Applicant failed to show his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

34. The Applicant raised his language problem.

35. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

36. In the current application, a friend helped the Applicant 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 while he was still represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

37. The Applicant complained he received the appeal bundle only a few days before the Board 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 on 5 December 2016. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 12 December 2016. 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. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

41. A few days certainly were 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.

42. The Applicant said he answered all the questions honestly in the Board hearing. That means he knew what was asked and how to answer. He was not confused.

43. There was no evidence the Adjudicator had taken into account outdated cases, information not officially recognised or simply hearsay.

44. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding and decision 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 was acquainted with the facts. He 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.”

The appeal

12.  On 16 September 2019, the applicant filed a notice of appeal.  The applicant advanced the following grounds of appeal in the notice:

(1)  The Judge had wrongly exercised his decision in coming to the conclusion that the Board had not erred in its decision;

(2)  The Board wrongly held that the applicant was not a credible witness due to the discrepancies found in the interview records, the Non-refoulement Claim Form, and the oral evidence given during the hearing before the Board;

(3)  The bundle lacked clarity and transparency as it was not interpreted to the applicant, rendering it difficult for the applicant to prepare for the hearing. The applicant also criticized the Judge by reference to a purported statement[15] which did not appear in the judgment in the CALL-1 Form; and

(4)  The applicant had no means to find out whether the interpreter had translated the materials adequately, and he further asserted that his words had always been wrongly interpreted.

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

14.  By a letter dated 16 September 2019, the applicant consented that this appeal may be determined by a 2-member court.

Discussion

15.  In the present case, the Board rejected the applicant’s claim based on its assessment of the risk of harm, the availability of state protection and the viability of internal relocation.  As the Judge correctly pointed out at [31] of the CALL-1 Form, these are within the province of the Board as the primary decision maker.  The court will not interfere with the same unless they are reversible on public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the Judge did not find any reasonably arguable basis to challenge these findings of the Board.

16.  Ground 1 in the grounds of appeal is a self-serving assertion without any substance. It cannot constitute a valid ground of appeal.

17.  Ground 2 is misconceived.  As indicated in [7] above, the Board did not question the applicant’s credibility because of the discrepancies found in various documents.  Instead, the Board questioned his credibility because he failed to take the first opportunity to seek non-refoulement protection when he had previously gone to stay in India and Nepal. He also failed to raise a non-refoulement claim when he was refused entry in Hong Kong. In our judgment, the Board was perfectly entitled to question the credibility of the applicant in light of these: see s 37ZD(1)(b) of the Immigration Ordinance (Cap 115).

18.  Ground 3 is a regurgitation of argument that had already been advanced before, and duly rejected, by the Judge.  The Judge adequately explained at [34] – [42] of the CALL-1 Form why the lack of language assistance and the alleged delay of the delivery of hearing bundle could not constitute viable grounds for judicial review.  We agree with the Judge’s observations. 

19.  There is no basis for the applicant to suggest that the Judge made the statement as he alleged. In that respect, the applicant’s assertion in Ground 3 is plainly misguided.  

20.  Ground 4 is a new argument that has not hitherto been raised in the proceedings below. The applicant did not make any complaint to the Board concerning the interpreter service at the hearing.

21.  As this Court has repeatedly said, in an appeal of this nature, new arguments directed against the Board which have not been canvassed at the Court of First Instance (and for which leave has not been sought within time) would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor [2019] HKCA 510 at [12]; Re Md Iqbal [2019] HKCA 912 at [13(3)], Re Sudimah [2019] HKCA 1030 at [12(3)], and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

22.  In any event, the applicant gave no particulars to support his allegation of misinterpretation. There is no evidence before us that the interpreter who assisted the applicant in the process did not provide adequate interpretation to him.

23.  In our judgment, the applicant failed to pinpoint any error on the part of the Judge that warrant this Court’s reversal of the decision below.  Tthe Judge’s observations are fully justified.  We agree that leave to apply for judicial review should be refused.

24.  For these reasons, we dismiss the appeal.