RE RAHMAN MD MOTALEB

CACV 248/2017

[2018] HKCA 386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2017

(ON APPEAL FROM HCAL 41 OF 2017)

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REASONS FOR JUDGMENT

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Hon Barma JA (giving the Reasons for Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) dated 27 October 2017 refusing leave to the applicant to apply for judicial review.

2.  By a letter dated 22 January 2018, the applicant agreed that this appeal may be heard before a two-judge court.  We heard the appeal on 5 July 2018.  At the conclusion of the hearing, we allowed the appeal and granted the applicant leave to apply for judicial review, but not on all of the grounds put forward.  We indicated that we would hand down the reasons for our judgment in due course.  These are those reasons.

Background

3.  The applicant is a Bangladeshi national.  He left Bangladesh for China on 24 August 2011, and entered Hong Kong illegally on 26 August 2011.  He was arrested by the police on 2 September 2011, and lodged his non-refoulement claim on 5 September 2011. 

4.  The applicant’s claim was based on two sources of fear, namely, (1) that he would be harmed, or even killed, by the members of the Awami League (“AL”) because of his membership of the opposite party Jamaat-e-Islami (“JeI”), and (2) that he would be harmed by two men, known as Eken and Illyas, who demanded repayment on behalf of a girl named Salina, who blamed the applicant for her loss of investment made through a group, Jubok, linked to JeI.  

5.  By a Notice of Decision dated 12 August 2015 (“the Director’s First Decision”), the Director of Immigration (“the Director”) decided against the claim.  The Director assessed that, given the absence or low intensity and frequency of ill-treatment, the applicant’s fear would be unlikely to materialize if he returned to Bangladesh.  Furthermore, the fear that the applicant would be harmed by the AL members was no more than his own speculation, as the applicant did not encounter any problem with the AL people except the verbal threats made by two senior members of AL.  The availability of state protection and the viability of internal relocation would also lower the level of risk.  The decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

6.  By a Notice of Further Decision dated 24 October 2016, the Director assessed the BOR 2 risk[4] in respect of the applicant’s claim and decided against it. 

7.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 2 November 2016, the Board dismissed the appeal on 8 February 2017.  The Board considered that the alleged attack by the AL people in a gathering of the supporters of JeI (in which the applicant suffered no injuries at all) was no more than actions taken by the police to restore public order and, in any event, did not involve the applicant personally.  The Board considered that the dispute relating to Salina’s investment loss was of a private nature without the involvement of the state.  Given the applicant suffered no injuries at all, the requirement of “minimum level of severity” could not be met.  The Board also agreed with the Director that internal relocation was a viable option for the applicant. 

The judge’s decision

8.  The intended judicial review was in respect of the Board’s decision.  The Form 86 filed by the applicant on 16 February 2017, and his supporting affirmation made on the same date, stated the following:

(a)  the court documents were written in English and there was insufficient time for the applicant to prepare for the hearing;

(b)  as a result, the applicant was confused and did not understand what was happening in the hearing; and

(c)  the Board erred in relying on hearsay and outdated materials.

9.  At the hearing on 12 September 2017, the applicant applied for an adjournment on the basis that his legal aid appeal was to be heard on 4 January 2018.  The judge took the initial view on the basis of the papers that the application for leave to apply for judicial review lacked any merits, and the application for adjournment was therefore refused.

10.  After summarizing the facts and background of the case, the judge gave her reasons in refusing leave to apply for judicial review at paragraphs 14 to 20 of the CALL-1 form:

“14. I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claims and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

15. I found no substance in the grounds of this application. In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated. The submission accuses the adjudicator of taking into account hearsay COI information, outdated or information not officially recognised. This is plainly wrong when the adjudicator sets out in full the source of news which I find up-to-date, relevant, objective and of international standard.

16. The applicant relies on a procedural impropriety/unfairness ground in that he was confused before and during the appeal hearing; he did not have sufficient time to prepare for his appeal. It is submitted the hearing was unfair due to a lack of care by the TCAB. However, there is no record in the decision of any complaint from the applicant that he required more time or assistance. He was provided with an interpreter to assist him during the hearing. There is no substance in this ground.

17. The applicant complains he answered all questions honestly during the appeal hearing and is aggrieved his credibility was found questionable. This is misleading when the adjudicator specifically made no finding as to his credibility. Moreover, the applicant chose not to answer any questions during the hearing.

18. During the application I did ask applicant if he had anything to add to his grounds in his affirmation and he complained that the adjudicator wrongly rejected his seven newspaper articles and the Director wrongly rejected his video clip evidence. He did confirm that the articles and video did not directly relate to or refer to himself personally. He added that the latest news from Bangladesh was that the President has said that if his party members see any JeI members they can just kill them. This bare assertion is fact sensitive and not to be considered in an application of this nature.

19. 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.

20. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

This appeal

11.  In his home-made Notice of Appeal dated 10 November 2017, the applicant stated the ground of appeal as follows:

“There is an appeal for the decision of legal aid and would like the case to be adjourned until there is over.” (sic)

12.  In his supplemental Notice of Appeal dated 29 November 2017, the applicant advanced the following grounds of appeal:

(a)  the judge erred in not adjourning the hearing for the leave application pending his legal aid appeal on 4 January 2018;

(b)  the judge erred in concluding that the Board’s and the Director’s decisions were “without fault”, whereas the Board erred in misapplying the state acquiescence test and in failing to refer to materials in the country of origin information (“the COI”) which was suggestive of the negation of state protection;

(c)  the judge erred in concluding that the applicant’s claim did not fall within the definition of persecution, whereas the essence of his application was based on his political belief; and

(d)  the judge erred in concluding that the COI was “up-to-date, relevant, objective, and of international standard”.

13.  The applicant has been legally represented since 9 April 2018.  In compliance with the directions given by the Registrar of Civil Appeals on 25 January 2018, counsel for the applicant lodged Skeleton Submissions on 7 June 2018.  In the Skeleton Submissions, Mr Shek (together with Mr Yeung), counsel for the applicant, advanced the following grounds of appeal:

(a)  the judge failed to consider the Board’s cherry-picking of the COI in relation to the availability of state protection;

(b)  the judge failed to consider the Board’s failure to consider the COI and assess the persecution risk and/or other risks on the basis of the risk of harm of persons similarly situated as the applicant; and

(c)  the judge failed to adjourn the hearing for the leave application pending the outcome of the applicant’s legal aid appeal.

Our decision

14.  We are satisfied that the first two grounds as formulated by Mr Shek in his skeleton argument (summarised at paragraphs 13(a) and (b) above) are reasonably arguable, and justify the granting of leave to the applicant to bring judicial review proceedings in respect of the Board’s decision on the basis of the matters raised in those grounds.  In the light of that, it is neither necessary nor appropriate for us to comment further on those matters at this stage.

15.  However, we do not think that the third ground, relating to the failure to adjourn the hearing below pending the outcome of the applicant’s legal aid appeal is well founded.  As will be apparent from what we have said above, the grounds of appeal (and of the intended judicial review) as formulated by Mr Shek were very different from those advanced by the applicant when appearing in person before the judge.  Having regard to the grounds for judicial review as they would have appeared to the judge, it seems to us that the judge was perfectly entitled to take the view that there was no real merit in them and that it would be inappropriate to delay the hearing of the leave application to enable the legal aid appeal to take place.  We would not, therefore, have allowed the appeal on the basis of this ground alone.

16.  However, as we have said, the other two grounds formulated by Mr Shek do give rise to arguable grounds for judicial review, and we therefore allow the appeal and give leave to the appellant to apply for judicial review of the Board’s decision on those grounds.

17.  So far as costs are concerned, having regard to the fact that the Board took a neutral stance in relation to this appeal and took no part in it, we made no order as to costs.