RE RAHAMAN EMRAN

CACV 287/2019

[2019] HKCA 1089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 287 OF 2019

(ON APPEAL FROM HCAL NO. 636 of 2018)

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J U D G M E N T

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Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 18 June 2019 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 29 March 2018 dismissing his appeal against the decisions of the Director of Immigration (“the Director”) dated 11 March 2016 and 6 September 2017 rejecting his non-refoulement claim.    

2.  The applicant is a Bangladeshi national.  He entered Hong Kong on 5 July 2013 and was given permission to remain as a visitor until 12 July 2013.  He overstayed and was arrested by the police on 16 September 2013.  He lodged a torture claim on 18 September 2013, which was assessed as a non-refoulement claim upon the commencement of the unified screening mechanism in March 2014. 

3.  The applicant’s claim is based on his fear of, firstly, being harmed or killed by the supporters of Awami League (“AL”) because he was the secretary general of Chhatra Shibir, which is the student wing of a rival party Jamaat-e-Islami (“JL”), which had formed an alliance with the Bangladesh Nationalist Party (“BNP”), and, secondly, being arrested by the Bangladesh police in connection with a false murder charge.  The applicant’s claim was set out in details in [6] of the first decision of the Director, and summarised by the Judge in [1] to [9] of the Form CALL-l dated 18 June 2019, [2019] HKCFI 1575.  In gist, during a clash between the supporters of AL and those of JL on 6 April 2013, AL’s president of Nasirabad Union was killed.  His wife made a report to the police, naming the applicant and 48 people as the suspects.  The applicant said this was a frame-up as he had an alibi.  After the clash, the applicant’s shop was destroyed by the AL people.  Further, on 15 April 2013, the applicant was attacked by seven to eight AL people resulting in a head injury that necessitated hospitalisation for ten days.  As the AL people and the police were looking for him, the applicant decided to leave the country, and came to Hong Kong.

4.  By the decision dated 11 March 2016, the Director rejected the applicant’s claim having regard to the torture risk[1], BOR 3 risk[2], and persecution risk[3] grounds. By a second decision dated 6 September 2017, the Director further assessed the applicant’s claim under the BOR 2 risk[4] ground and decided against it.

5.  The applicant appealed the Director’s decisions to the Board, which heard the appeal on 23 January 2018, during which he was legally represented by the Duty Lawyer Service.  By a decision dated 29 March 2018, the Board dismissed the appeal.  For the reasons set out in [36] to [40] of the decision, the Board found the applicant’s account to be unreliable, except where he admitted to be a fugitive of the law.  Independent of the lack of credibility, the Board also found the applicant had failed to establish a case in respect of any of the applicable grounds. 

6.  The applicant filed his Form 86 together with a supporting affirmation on 13 April 2018 seeking leave to apply for judicial review against the decision of the Board.  At the applicant’s request, the Judge heard the leave application at a hearing held on 5 September 2018. 

7.  The Form 86 set out the following grounds for seeking relief:

(1)  The Board failed to maintain the high standard of fairness in that the applicant had submitted substantial evidence to support his claim, the Board should not find the applicant unreliable by reason of minor discrepancies arising under cross-examination.

(2)  The Board simply followed the Director’s decisions and failed to approach the appeal as a rehearing of the applicant’s claim.  This was evidenced by the Director being excused from attending the hearing, and the Board not having considered the country of origin information (“COI”).

(3)  Under the common law, minimum standards of fairness are required in decision making.

8.  The Judge considered the intended judicial review not reasonably arguable and had no realistic prospect of success, and refused to give leave to apply for judicial review.  He gave his reasons at [37] to [45] of the Form CALL-1 as follows:

“37. The Applicant was still represented the Duty Lawyer Service for appeal to the Board. He complained the duty lawyer did not allow him to produce to the Board a news clip of the murder case, which he was accused of.

38. That was a serious accusation but it was not mentioned anywhere in the Applicant's affirmation or Form 86. The Applicant also lacked proof. He could not show the court the alleged video clip and how it could support his claim of risk.

39. The Applicant complained the Adjudicator failed to consider his evidence and placed undue weight on minor discrepancies to find him unreliable.

40. There was no evidence that the Adjudicator was concerned with minor discrepancies. On the contrary, the Adjudicator properly noted there was a major discrepancy in the Applicant's evidence. The Applicant said in his earlier written statement that he was at the scene when PNU was killed but now he claimed alibi. The Adjudicator had proper basis to find the Applicant’s claim unreliable.

41. The Applicant said the Adjudicator should treat his appeal as a rehearing rather that than simply trying to see whether he could “find fault with the decision of the immigration officer”.

42. The Adjudicator’s report showed the Adjudicator made detailed inquiry of the Applicant's claim on a re-hearing basis, in the presence of the Applicant and his counsel.

43. The Applicant complained the Director was excused from the appeal hearing. That was not correct. The Director was represented by an Immigration Officer and counsel from the Department of Justice.

44. The Applicant complained the Adjudicator failed to consider matters such as relevant COI. Again, that was not correct. The Adjudicator had studied relevant COI. He concluded reasonable state protection was available to the Applicant.

45.  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. 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.”

9.  The applicant filed a notice of appeal on 26 June 2019, which contained the following grounds of appeal:

(1)  The applicant would face hardship if refouled.

(2)  The Board had significantly relied on news, the source of which was not officially recognised, or was simply hearsay.  It had also considered cases that were outdated considering the dramatic changes.  The lack of credible information resulted in the Board making groundless speculation. 

10.  In his written submission, the applicant referred to ST v Director of Immigration [sic][5] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and the high standards of fairness required of a decision-maker in the determination of a non-refoulement claim.  He argued that the high standards of fairness are engaged because the applicant’s life and limb and his fundamental human rights not to be subjected to torture were involved, and the decision has the effect of finally disposing of the applicant’s claim.

11.  We heard the appeal on 23 September 2019.  At the hearing, the applicant said he had nothing to add.

12.  The grounds of appeal set out in the notice of appeal are unarguable.  Firstly, the Board had rejected the applicant’s case as being not credible and unreliable.  This being the case, there is no factual basis to support the applicant’s claim that he would face hardship if refouled to Bangladesh. Further, this Court has repeatedly emphasized that judicial review does not operate as a rehearing of an applicant’s non-refoulement claim.  Evaluation of the claim and evidence 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 its focus is on the legality and rationality of the decisions challenged and the propriety and fairness of the process by which the decisions were made.  Secondly, the complaint about the COI relied on by the Board is a new complaint that was not raised before the Judge.  It is not open to the applicant to raise it at the appeal before this Court.  In any event, the complaint is vague and lacks particulars, and affords no proper basis for the Court to interfere with the Board’s consideration of the COI.  

13.  As to the written submission, while we accept the legal principles set out in the cases cited, the applicant has not demonstrated in what ways the Board has fallen short of the standards required of it in assessing the applicant’s claim.  In so far as the applicant is relying on the grounds in the Form 86, they had been considered and properly rejected by the Judge.  We can discern no error in the Judge’s decision.

14.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.