RE ISLAM MANIRUL AND OTHERS

CACV 283/2020

[2021] HKCA 359

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 283 OF 2020

(ON APPEAL FROM HCAL NO. 1810 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1.  This is an appeal against the decision of Deputy High Court Judge K W Lung dated 9 July 2020 who refused to grant leave to the applicants to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

1.2.  Pursuant to the directions given by the Registrar of Civil Appeals dated 3 November 2020 that in view of the failure by the applicants to lodge their written submission they were deemed to waive the right to have an oral hearing and elect to have this appeal disposed of on paper.  We consider the arrangement proper and give our judgment below.

2)  Background

2.1.  The 1^st applicant is a national of Bangladesh.  The 2^nd applicant is the wife of the 1^st applicant.  The 3^rd applicant is the son of the 2^nd applicant, who was born from an arranged marriage with another man.

2.2.  The applicants arrived in Hong Kong on 9 February 2016 but they overstayed.  On 24 February 2016 they claimed non-refoulement protection on the basis that if they were refouled they would be harmed or killed by :

(1)  members of the Awami League;

(2)  creditors whom the 1^st applicant took out a business loan with; and

(3)  the 2^nd applicant’s ex-husband from her former marriage.

2.3.  The details of the applicants’ claim have been summarized by the Judge at [4]-[6] of the CALL‑1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicants’ claims on 24 February 2017.  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as other statutory and convention rights against torture and persecution.

4)  The Board’s Decision

4.1.  The applicants appealed against the Director’s decision to the Board.  After a hearing held on 25 April 2018, the Board dismissed the applicants’ appeal against the Director’s decision on 6 July 2018.

4.2.  The Board summarized the applicants’ claims into three limbs as described above.  The Board held that despite the alleged political problems of the 1^st applicant, he was able to travel and re‑enter Bangladesh freely without any problems.  The Board was unable to attach any credence to the 1^st applicant’s claim that he was being sought by the authorities.  As for the 1^st applicant’s debt owed to creditors, the Board held that there was no indication that this was anything out of the ordinary as he was being pursued through legitimate means.  The Board held that the evidence does not suggest that the 2^nd applicant and the 3^rd applicant son were still experiencing problems from the 2^nd applicant’s ex‑husband.  

5)  Decision of the Judge

5.1.  The applicants lodged a Form 86 application with a supporting affirmation made by the 1^st applicant to the High Court for leave to apply for judicial review.  There were eight pages of exhibits in the applicants’ supporting affirmation but in particular we extract the last page’s handwritten content as far as we understand and could read from it :

‘ My son life is also risk. Because my creditors was very angry with me. If we go back my country my creditors will try to harm me and my family. Our countries law and order is too bad now. I have many example the creditors kidnap the debtors children and killed them. I think they will do this because many times my creditors go my home and threat my old mother like this.

My wife previous husband want to take his son. As far I know he was not a good man he was a dangerous man. If he take his son his life is will be destroyed. Because his father is a criminal. So my son life is danger. His study will be harm. He is a child please don’t destroyed his life. He is a good student he study in kg3. If we go back our country his life is so danger.’

5.2.  The Judge held that this was the applicants’ joint application for leave for judicial review against the Board’s decision.  The son’s claim was based upon the 1^st applicant’s claim.  The Judge then went on to consider the applicants’ claim for non-refoulement on a joint basis and refused to grant leave.

6)  Grounds of appeal and application for leave to amend

6.1.  The applicants’ notice of appeal contains the following grounds of appeal :

(1)  The decision is substantially unfair; and

(2)  This application was prepared without legal representation.  All rights reserved to amend these grounds at a later time.

6.2.  On 3 March 2021, the applicants lodged to this Court an application for leave to amend their notice of appeal.  In short, they submitted the following :

(1)  The applicants seek 21 days from the date of our order to submit their amended grounds of appeal;

(2)  There was failure on the Board to give separate consideration to the 3^rd applicant son’s non-refoulement claim;

(3)  There was a lack of legal representation for the 3^rd applicant son before the Board; and

(4)  It is in the interest of justice for their leave application to be granted, even though these are new grounds not raised before the Board or the Judge.

7)  Our view

7.1.  We will repeat the approach of this Court in dealing with cases of this nature :

(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 the 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 their decisions.

(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. In the determination for 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)  In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

7.2.  In our view there are no merits in the 1^st and 2^nd applicants’ appeal.  The Board’s decision and the decision of the Judge had already made the position clear.  The notice of appeal contains bare allegations without particulars.

7.3.  The 3^rd applicant, however, is a minor and it is necessary for us to consider his claim separately even if it is based on the parents’ same set of facts, having regard to the personal circumstances of the child.  Ill treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child : Fabio Arlyn Timogan [2020] HKCA 971.  He has not been separately and legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (‘RHC’). It is of note that if the Court is satisfied that the Board had achieved high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the Court to conclude that the minor’s intended judicial review is without any merit.  In such case the Court may dismiss the minor’s leave application notwithstanding that the minor has not been legally represented before the Board and before the Judge, treating non-compliance with Order 80, rule 2 of the RHC as a mere irregularity : Re Jassal Tajinder Kumar [2021] HKCA 124 per G Lam J at [27].

7.4.  We note that both in the Board’s decision and the Form CALL-1 decision, the focus has been to address the 1^st applicant’s claim for non‑refoulement.  Even where in the 1^st applicant’s exhibit to his supporting affirmation there were claims of the 1^st applicant’s son’s safety, the Judge did not deal with those concerns separately but considered the matter as a whole based on the 1^st applicant father’s claims.

7.5.  For the above reasons, we dismiss the 1^st and 2^nd applicants’ appeal, but we consider the 3^rd applicant’s application for judicial review to be reasonably arguable.  In these circumstances, we shall treat the non‑compliance with Order 80, rule 2 in these proceedings as a mere irregularity without rendering this appeal a nullity.  We shall allow the 3^rd applicant’s appeal and give leave to apply for judicial review of the Board’s decision, directing that he be represented by the Official Solicitor as his next friend for the purpose of proceeding with his application for judicial review.  Both the Director and the Board have indicated that they take a neutral stance in this appeal.  As the Director has not taken part in this appeal, we have not explored whether the substantive application for judicial review may be disposed of by consent, as in Fabio Arlyn Timogan.  We make no order as to costs.

7.6.  The applicants asked for 21 days to amend their notice of appeal.  This is not necessary since we have already granted the 3^rd applicant’s appeal and given him leave to apply for judicial review and this is what the applicants sought to achieve by the proposed amendment.  Accordingly we will make no order on the applicants’ application lodged on 3 March 2021 for leave to amend their notice of appeal of 22 July 2020.