RE DALOWAR MOHAMMAD

CACV 279/2018

[2018] HKCA 754

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 279 OF 2018

(ON APPEAL FROM HCAL NO 533 of 2017)

___________________________

___________________________

______________________________________

REASONS FOR JUDGMENT

______________________________________

Hon Poon J (giving the Reasons for Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 25 June 2018 refusing him leave to apply for judicial review. The intended judicial review is against the decision of the Non‑refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 21 July 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 5 January 2016 and 26 June 2017 rejecting his non‑refoulement claim. The applicant consented to the appeal being heard by a two‑judge court.

2.  The applicant did not appear at the appeal hearing and having considered his grounds and written submission, we found no merits and dismissed the appeal.  We now give our reasons.

3.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 22 December 2013 and was arrested by police the following day.  He lodged a non‑refoulement claim on 27 December 2013.

4.  The personal background and the basis of the applicant’s claim have been set out in full in the decisions of the Director and of the Board.  Briefly, the applicant claimed that if he were to return to Bangladesh he would be harmed or killed by members of the Awami League (“AL”) because as an active member of the opposing party the Bangladesh Nationalist Party (“BNP”) he had successfully convinced many AL members in his home district to switch their allegiance to the BNP.  He claimed to have been assaulted and threatened by some AL leaders had who demanded him to switch his allegiance to the AL. Fearing for his safety, he departed Bangladesh for Hong Kong via China on 19 December 2013.

5.  The Director assessed the applicant’s claim on all applicable grounds namely, the torture risk[1], the BOR 3 risk[2], the persecution risk[3] and the BOR 2 risk[4].  His claim was rejected by the Director by Notice of Decision dated 5 January 2016 and Notice of Further Decision dated 26 June 2017.  The applicant then lodged a petition/appeal with the Board which was rejected on 21 July 2017.

6.  The applicant filed his Form 86 on 21 August 2017 seeking leave to apply for judicial review of the decision the Board, but naming both the Director and the Board as the putative respondents.  An oral hearing was conducted and the applicant appeared in person before the Judge on 23 January 2018.  The Judge having considered the grounds for judicial review refused to grant leave to apply for judicial review for the reasons encapsulated in [11] to [17] of the Form CALL‑1 dated 25 June 2018[5]:

“11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim and evidence and then explained his finding. The applicant’s complaints against him and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

12. The applicant has wrongly proposed both the Director and the TCAB [the Board] as respondents as well as interested parties in his Form 86. However, there are no grounds directed at the Director. In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB. The TCAB treated the appeal/petition as a de novo hearing or rehearing. The applicant would have covered all mistakes he says the Director made in his appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated his appeal/petition as a rehearing. To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances. Those circumstances do not arise here.

13. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. The decision of the TCAB states that the adjudicator explained the process to him and the applicant elected not to give evidence. There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. Lastly, during the oral hearing he requested he admitted that the appeal procedure was explained to him at his appeal hearing and that he did understand it. I find no merit in this ground.

14. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Judicial review is not an avenue for revisiting the assessment by the adjudicator and considering the applicant’s evidence again. In any event, the adjudicator assessed the claim on the basis that what he said was true; he made no finding as to credibility. There is no merit in this ground.

15. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out‑of‑date. However, there are no particulars supplied by the applicant to support this ground. I find no merit in this ground.

16. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie C W Cheung & anor (2007) 10 HKCFAR 676, para 14‑17.  I refuse leave to apply for judicial review.”

7.  The applicant filed a Notice of Appeal on 3 July 2018 but did not state any grounds of appeal.  He only wrote this:

“There is an appeal for the decision of legal aid and would like the case to be against will that is over.”

8.  The applicant had applied for legal aid, which was refused by the Director of Legal Aid on 27 July 2018.  The 42‑days statutory stay had also expired.  The applicant has since filed his written submission in which he had set out in considerable details his case (see [8] below).  He has not requested for an adjournment of the appeal hearing.

9.  In his written submission lodged on 21 September 2018, the applicant basically repeated his personal background, the basis of his claim and his disagreement with the findings of facts made by the Director and the Board.  He complained that the Board did not carry out sufficient research and inquiry into the country of origin’s conditions and had placed insufficient weight on COI relevant to his claim.  He asked for a reconsideration of his case, especially with regard to the BOR 2 risk ground.

10.  This court has repeatedly emphasised that judicial review does not operate as a rehearing of the non‑refoulement claim.  Evaluation of the claim and assessment of its merits is a matter for the Director and the Board, who are the primary decision makers.  The court in a judicial review exercises a supervisory role and focuses on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  The Court of Appeal focuses on the decision of the Judge and 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 of was otherwise plainly wrong, see Shrestha Santosh Kumar, CACV 194/2018 at [17].  Hence, regurgitation of arguments advanced and rejected by the judge serves no purpose in advancing this appeal.

11.  In any event, the Judge had considered the complaints advanced by the applicant in his written submission.  We see no proper basis for interfering with the Judge’s reasons and rejection of the applicant’s grounds for judicial review.

12.  We dismissed the appeal accordingly.