RE MOROL RANA

CACV 201/2018

[2018] HKCA 617

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 201 OF 2018

(ON APPEAL FROM HCAL 778/2017)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam of 21 May 2018 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  The applicant came to Hong Kong illegally on 22 June 2014 and was arrested by the police on the following date.  He lodged his non-refoulement claim on 27 June 2014.  His claim was based on the fear that he would be harmed or even killed by the people of the Bangladesh Chatra League (“BCL”), a student wing of the political party Bangladesh Awami League (“AL”), if he returned to Bangladesh.

3.  The background facts are sufficiently set out by the judge in the CALL-1 Form at [2018] HKCFI 1063. We shall not repeat the same here.

4.  By a notice of decision dated 18 August 2016, the Director of Immigration assessed the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]. The director determined the risks against the applicant and rejected his claim for non-refoulement protection.

5.  The director had also assessed the applicant’s claim based on the BOR 2 risk[4].  By a notice of further decision dated 10 July 2017, the director decided against the applicant.

6.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 19 September 2017, and the applicant testified at the hearing.  The Board found that the applicant’s evidence was not credible and was inherently improbable. The applicant asserted at the hearing that internal relocation was not a viable option for him, but the Board noted that he had stayed in other parts of the country for a couple of months without encountering any problems.  Having considered the relevant country of origin information (“COI”), the Board took the view that internal relocation was a viable option for him.  The Board dismissed the appeal on 29 September 2017

The judge’s decision

7.  On 17 October 2017, the applicant applied for leave to apply for judicial review of the decision of the Board.  The form 86 did not contain any grounds for seeking relief, the applicant advanced the following grounds in his supporting affirmation dated 17 October 2017:

(1)   The adjudicator failed to carry out sufficient research and inquiry into the COI conditions;

(2)   The adjudicator failed to take into account of, and consequently failed to put any weight on, the relevant COI materials; and he cherry-picked and put weight on materials that were irrelevant;

(3)   The adjudicator failed to evaluate or make a finding as to whether there was a consistent pattern of gross, flagrant or mass violation of human rights;

(4)   The adjudicator failed to analyze whether state protection existed in Bangladesh;

(5)   The adjudicator took account of and put weight on irrelevant consideration and failed to consider those facts and inferences that were in the applicant’s favour;

(6)   The adjudicator failed to call for psychological and psychiatric evaluations and reports;

(7)   The adjudicator applied the incorrect standard of proof;

(8)   The assigned duty lawyer did not render any, or rendered insufficient, legal assistance to the applicant; and

(9)   The adjudicator failed to arrange an oral hearing.

8.  The deputy judge heard the application on 9 May 2018.  After hearing the applicant and having given due consideration of the decisions of the director and the Board, the judge refused to grant leave to the applicant to apply for judicial review.  The deputy judge’s reasons for refusal were set out in paragraphs 39-50 of the CALL-1 form dated 21 May 2018 as follows:

“ Discussion

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

40. 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’.

41. Many of the Applicant’s complaints were merely categorical accusations. I shall first deal with the more specific ones.

42. It is clearly wrong for the Applicant to say the Adjudicator failed to arrange an oral hearing. The Applicant appeared before the Adjudicator for appeal on 19 September 2017. He answered the Adjudicator’s questions.

43. The Applicant was represented by the Duty Lawyer Service up to the Director's decision stage. 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 cannot demonstrate to this court how his case would be undermined or prejudiced by the lack of legal representation in the later stages of the screening process.

44. The Applicant complained the Adjudicator failed to call for psychological and psychiatric reports on him. However, the Applicant had not put forward any justification for the calling of such reports.

45. The Adjudicator’s report shows he was aware of the undesirable conditions in Bangladesh. He need not state specifically whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. It is for the Applicant to prove there was such a situation which bore relevance to his claim. The Adjudicator was right to find that the Applicant failed to do so.

46. The Adjudicator also found the Applicant failed to prove there was state instigation or state acquiescence in his case. The Adjudicator apparently accepted there was reasonable state protection in Bangladesh. His findings were not Wednesbury unreasonable.

47. The Applicant's other complaints lacked specifics. I have reviewed the Adjudicator’s report under ‘rigorous examination and anxious scrutiny’. I am satisfied that the Adjudicator had good understanding of the Applicant’s case and the law. He considered his claim carefully and applied the law correctly. The Adjudicator was alive to the issues. There is no evidence that he had considered irrelevant facts or out-dated information. There is no evidence that he cherry-picked information or evidence. The Adjudicator had given sufficient attention to the situation in Bangladesh for his relevant consideration. He had not misdirected himself on any point of law or applied the wrong standard of proof or neglected relevant facts/inferences favourable to the Applicant. The Adjudicator had proper basis to come to his findings, conclusions and decisions which were all reasonable.

48. The Adjudicator had engaged in joint endeavour with the Applicant in the screening inquiry. He had given sufficient opportunity for the Applicant to state and elaborate his case. He considered his claim carefully and applied the law correctly. His findings, conclusions and decisions were not Wednesbury unreasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

49. The Director is an interest party in the current application. I have also reviewed his reports under ‘rigorous examination and anxious scrutiny’. What has been said above of the Adjudicator is also true of the Director. His findings, conclusions and decisions were not Wednesbury unreasonable. The Director had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

50. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The appeal

9.  The applicant filed a notice of appeal on 1 June 2018.  No ground of appeal was contained in the notice of appeal. The applicant set out the following grounds in his supporting affirmation dated 1 June 2018:

(1)   The judge was wrong in law in holding that there was no state acquiescence or involvement;

(2)   The judge failed to provide detailed reason in support of [his] decision.

10.  In the exhibit marked “A” to the said affirmation, the applicant also put forth the following grounds:

(1)   The Board misdirected itself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future;

(2)   The Board failed to carry out sufficient inquiry into the COI condition;

(3)   The Board failed to take into account of some relevant COI materials, and cherry-picked and took into account of some irrelevant COI materials;

(4)   The Board failed to evaluate and to make a finding as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violation of human rights;

(5)   The Board failed to assess whether state protection existed in Bangladesh under the extended concept of state acquiescence;

(6)   The Board put weight on those materials which were irrelevant, incorrect, inaccurate, and of no factual basis;

(7)   The Board failed to call for psychological and psychiatric evaluations report;

(8)   The Board applied the wrong standard of proof; and

(9)   The applicant received insufficient legal representation from his assigned duty lawyer.

11.  The applicant lodged his skeleton argument on 21 August 2018.   

12.  We heard the appeal on 13 September 2018.

Discussion

13.  Before we addressed the grounds of appeal, we would reiterate the following general propositions:

(a)   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 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.

(b)   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 of 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.

(c)   It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489. In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(d)   Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(e)   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 this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  In the present case, after having rigorous examination and anxious scrutiny of the materials available before him, the deputy judge found no reasonably arguable basis to challenge the findings of the Board. 

15.  In this appeal, the applicant did not put forth any viable ground to reverse the judge’s decision. There is no basis for suggesting that the judge did not give adequate reasons. Given the facts of this case and the findings of the Board, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

16.  As regards Exhibit A, his arguments there were only a regurgitation of the arguments advanced before, and duly rejected by, the judge.  As stated above, this course cannot avail the applicant on appeal.

17.  Having considered the materials available before us, as well as the submissions of the applicant, we agree with the judge that leave to apply for judicial review should be refused.

18.  For these reasons, we dismiss the appeal.