RE HASHEM ALI

CACV 596/2018

[2019] HKCA 554

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 596 OF 2018

(ON APPEAL FROM HCAL 483 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) set out in the Form Call-1 dated 11 December 2018 (“the Deputy Judge’s Decision”) [2018] HKCFI 2574, refusing leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 14 March 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 14 May 2015 (“the Director’s First Decision”) and 5 June 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 27 August 2006 and was permitted to remain as a visitor until 11 September 2006.  However, he overstayed from 11 September 2006 and was arrested by the police on 26 December 2007.  He lodged a non-refoulement claim on 2 January 2008.

3.  The details of the applicant’s claim and his personal background were set out in paragraphs 12 - 14 of the Director’s First Decision, and paragraphs 1 and 3 - 10 of the Board’s Decision.

4.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by Bampanthi, an affiliation to the Bangladeshi Nationalists Party (“BNP”), because he refused to join them.  The applicant claimed that he was a supporter of Awami League (“AL”) which frequently had conflicts with BNP, the ruling party in Bangladesh.  As a result, BNP would attack members of AL during meetings and rallies.  He further claimed that he was invited to support and join Bampanthi but he declined the invitation. Consequently, he suffered constant threats and assaults from members of Bampanthi.

The Director and the Board’s Decisions

5.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

6.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 7 December 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

7.  The Board concluded that the Bampanthi members had no intention to kill the applicant or harm him seriously even if they had threatened to do so (paragraph 20 of the Board’s Decision).  The Board also refused his assertion that the outlawed group of Bampanthi had influence or power over the police and concluded that state protection and internal relocation were available to the applicant (paragraphs 21 - 26 of the Board’s Decision).  Further, the Board found that the applicant lacked credibility.  Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 26 March 2018 seeking leave to apply for judicial review against the Board’s Decision.  He also filed a supporting affirmation on the same day.  His grounds for judicial review were succinctly summarized by the Deputy Judge at paragraphs 25 - 27 of the Deputy Judge’s Decision:

“25. In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

26. The Applicant complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.

27. The Applicant further complained the Adjudicator relied on outdated cases and information not officially recognised or simply hearsay.”

9.  The Deputy Judge heard the applicant’s leave application on 9 July 2018.  At the hearing, the applicant confirmed that the grounds for judicial review were as stated in Form 86 and his supporting affirmation, and had nothing to add.

10.  Having considered the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 31 - 43 of the Deputy Judge’s Decision:

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

32.   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.’

33.   The Applicant mentioned he was not legally represented. He had been represented by the Duty Lawyer Service (‘DLS’) up to 13 January 2015, when the DLS informed the Director that they had no further instruction to act for the Applicant. On 27 January 2015, the Director advised the Applicant to approach DLS if he still would like to have legal assistance. The Applicant visited the DLS office. DLS did not resume acting for him.  There was no evidence to show anyone else other than the Applicant had to be responsible for his lack of legal representation after 13 January 2015.

34.   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 how his case would be undermined or prejudiced by the lack of legal representation in the screening process after 13 January 2015.

35.   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 up to 13 January 2015 and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

36.   The Applicant complained he received the appeal bundle only on 1 December 2017 before the Board hearing scheduled for 7 December 2017.

37.   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.

38.   The Applicant received the appeal bundle 6 calendar days (or 5 working days) prior to the Board hearing. The bundle was served on the Applicant in time.

39.   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.

40.   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.

41.   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 not confused.

42.   There was no evidence the Adjudicator took into account outdated cases or information not officially recognised or simply hearsay.

43.   I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion 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 of the case. 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. None of the Applicant’s complaints is substantiated.”

Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 20 December 2018 to appeal the Deputy Judge’s Decision.  He advanced his grounds of appeal as follows:

“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 official 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.”

12.  Apart from the mere repetition of his claim in the Notice of Appeal, the applicant did not identify any errors in the Deputy Judge’s Decision.

Discussion

13.  Notwithstanding that the Notice of Hearing has been sent to the applicant at the address provided by him, he did not appear at this hearing.  When the clerk to Hon Lisa Wong J contacted him by phone upon his failure to appear, he only informed the clerk that he wished to come the next day, without offering any explanations as to why he did not turn up at this hearing in the first place.

14.  We are satisfied that the applicant should be aware of the hearing time as fixed and he has failed to give any satisfactory explanations as to why he did not come to this hearing.  We therefore decided to proceed to deal with this appeal in his absence and based on all the papers he has submitted in support of it.

15.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

16.  Firstly, 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, 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, procedural unfairness or irrationality in the decision of the Board.

17.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an 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 determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

18.  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 the Court of Appeal 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 time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

19.  In light of the above, it is thus incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any errors in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which were properly addressed by the Deputy Judge in his reasons.  These are no viable grounds of appeal.

20.  In his skeleton argument dated 26 March 2019, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.

21.  These authorities do not assist the applicant in this appeal.  The learned Deputy Judge has specifically reminded himself and applied the principle in reviewing the Board’s Decision (see in particular paragraph 43 of the Deputy Judge’s Decision).  However, as mentioned above, the applicant has simply failed to identify anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.

22.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no error of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

23.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.