RE MOSTOFA MD

CACV 132/2019

[2019] HKCA 1000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 132 OF 2019

(ON APPEAL FROM HCAL 732/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 7 March 2019 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 15 March 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 29 August 2016 and 19 October 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally and was arrested by the police on 18 March 2016.  He lodged a non-refoulement claim on 24 March 2016. 

3.  The applicant’s claim was based on threats from members of an opposing political party and his family members.  The details of the applicant’s claim have been summarised by the judge at [2] to [11] of the CALL-1 Form.

4.  By a Notice of Decision dated 29 August 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 19 October 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 29 December 2017, the Board dismissed the appeal on 15 March 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [46] of the Board’s Decision, the Board found that there was no risk of serious harm against the applicant and his fear was not well-founded.  The Board was also satisfied at [65] that there is nothing to suggest that, if refouled, the applicant will not be afforded the requisite level of state protection and at [81] that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 26 April 2018 which contained the following grounds for judicial review, summarised below:

(1)     the Board misdirected itself on the law by holding that the applicant must have experienced torture in the past in order to establish substantial grounds to believe that there is a risk of torture in the future;

(2)     the Board failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(3)     the Board cherry-picked COI information and relied on outdated COI;

(4)     the Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(5)     the Board failed to analyse Bangladeshi state protection.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(6)     the Board took into account incorrect fact and failed to give weight to fact favourable to the applicant;

(7)     the Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(8)     the Board applied an incorrect standard of proof; and

(9)     the duty lawyer failed at the first instance to give sufficient legal representation.

9.  In his affirmation in support of the leave application dated 26 April 2018, the applicant advanced the following further grounds for judicial review which are summarised below:

(1)     the hearing bundle arrived just a few days before the Board hearing, there was insufficient time for him to prepare; and

(2)     it was unfair for the Board to give decision on BOR2 risk without the risk being first screened or judged by the Director.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [38] to [52] of the CALL-1 Form:

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

39. 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’. Nevertheless, it is said in Re Islam Rafiqul: –

‘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 scrutinising 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.’

40. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director screened the Applicant’s claim with respect to BOR2 risk in his further decision dated 19 October 2017. The Applicant had not provided additional information to the Director after the Director’s decision dated 29 August 2016. The Director was entitled to go on to consider BOR2 risk without holding further interview. The Director’s further decision must be read in conjunction with his earlier decision, where there was a clear analysis of the Applicant’s case.

41. The Applicant had been represented by the Duty Lawyer Service up to the Director’s decision dated 29 August 2016. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

42. The Applicant complained there were a lack of and/or insufficient legal representation. 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 failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

43. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by interpreters when he was represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

44. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

45. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’, the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing. There was no evidence the rules had been breached.

46. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant’s case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

47. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show he really needed more time to prepare for his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

48. The Adjudicator had considered the issues of state protection and state acquiescence. She did not accept there was any state instigation, consent or acquiescence. She also did not accept the Bangladesh state was unwilling or unable to provide state protection to the Applicant. The Adjudicator’s findings were not Wednesbury unreasonable. Actually, those were not real issues as the Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

49. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

50. There was also no evidence the Adjudicator misdirected herself in law or adopted the wrong standard of proof.

51. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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. She 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.

Conclusion

52. 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 judicial review.”

Grounds for appeal

11.  In the Notice of Appeal dated 20 March 2019 the applicant advanced the following grounds of appeal:

“The [judge] failed to provide detailed reasons and not properly follow the law”

12.  In his skeleton submissions received on 29 May 2019, the applicant explained why it is unsafe for him to return.  He submitted that:

“[the judge] never point out any point to cancel my claim. He just sing all about the [Board’s] speech…[the judge] did not see any fault of [the Board]. [The Board] never provided me legal help. I cannot understand anything about law…All applicable grounds…all he ‘cheaked’ [checked] but my problem should not go to any law. That means in Bangladesh my problem is ‘fack’ [fact] or if not ‘fack’ [fact] then Hong Kong Government actually do not want to find the real refugee”

13.  We heard the appeal on 20 August 2019.  At the hearing the applicant repeated that it was not safe for him to return.  He also said that he wishes to stay in Hong Kong pending the resolution of a case arising out of an alleged assault on him. 

Discussion

14.  The grounds stated in the Notice of Appeal have no merit.  As is apparent from the extract from the judgment set out above, the judge gave detailed reasons for his decision.  As for the complaint that the judge did not follow the law, no particulars as to the alleged errors are given and this is therefore not a viable ground of appeal. 

15.  As for the ground of appeal in the written submissions concerning the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicant failed to show how the lack of legal representation caused any prejudice in the leave application.

16.  As for the complaint that the judge merely followed the Board’s Decision and failed to give sufficient reasons for dismissing the leave application, we have considered the CALL-1 Form in detail and we do not consider that the judge made the errors alleged by the applicant.  The judge had dealt with each of the grounds of judicial review by critically evaluating the Board’s Decision and applying the correct legal principles.  The judge had given sufficient reasons for his decision.

17.  The matters stated by the applicant at the hearing do not amount to viable grounds of appeal either.

18.  There is therefore no merit in any of the grounds of appeal and we dismiss the appeal accordingly.