RE DEWAN ASLAM

CACV 313/2018

[2018] HKCA 818

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 313 OF 2018

(ON APPEAL FROM HCAL NO. 1154 OF 2017)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 9 July 2018 in HCAL 1154/2017 refusing leave to the applicant to apply for judicial review. 

2.  Because of the non-compliance with the direction for lodging skeleton submission within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 27 November 2018), the applicant would be deemed to have waived his right to have an oral hearing.  This appeal is dealt with on paper based on the materials already lodged according to the practice adopted by this Court: see Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

Background

3.  The applicant is a national of Bangladesh.  He arrived in Hong Kong on 19 April 2013 illegally and was arrested on 21 April 2013.  On 8 May 2013, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the Awami League (“AL”) because he supported the Bangladesh Nationalist Party (“BNP”) and because he had injured an AL member, who later became a powerful figure in Bangladesh.

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1468.  We shall not repeat the same here.

5.  By the Notice of Decision dated 30 September 2015, the Director of Immigration (“the Director”) decided against the applicant’s claim. The decision covered BOR 3 risk, torture risk, and persecution risk. By a further decision dated 3 January 2017, the Director also assessed the applicant’s BOR 2 risk and determined against him.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 21 February 2017 and 23 November 2017, the Board dismissed the appeal on 15 December 2017.  The Board found a number of inconsistent and incredible features in the applicant’s allegations and was not satisfied with the truthfulness of his evidence.  The Board shared the Director’s view that, based on Country of Origin Information (“COI”), state protection was available and internal relocation was a viable option for the applicant. The Board’s decision covered all grounds applicable to the applicant’s claim.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 28 December 2017 set out the following grounds for judicial review against the Director’s decision:

(1)  Failing to properly consider the issue of state acquiescence and state protection.

(2)  Failing to appreciate the corruption and incompetence of the administration in Bangladesh.

(3)  Failing to appreciate the misconduct of the Bangladesh police.

(4)  Failing to properly consider the relevant COI in assessing the applicant’s case.

(5)  Failing to attain the high standard of fairness by rendering unreasonable decision.

8.  On 9 July 2018, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [34] – [40] for his refusal to grant leave:

“ Discussion

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

35. 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’.

36. The Applicant complained he had limitation in adducing proofs because he had been detained.

37. The Applicant was given recognizance by the Director in July 2013. However, between August 2016 and November 2017 he was imprisoned for illegal employment. Then he was further detained by the Immigration Department for 40 odd days before he got recognizance again. The Applicant said that during detention he could only speak to people overseas on phone for 3 minutes per week. He agreed he could have written to them for help to gather proofs for his claim but he failed to do so.

38. The Applicant had first been given recognizance in July 2013. If he really wanted to gather proofs for his claim, he had more than enough time and opportunities to do so between July 2013 and July 2016. The Director screened the Applicant's claim with respect to torture risk, persecution risk and BOR3 risk in August/September 2015. The Applicant was only detained during the period when the Director further considered his claim with respect to BOR2 risk and when the Adjudicator heard his appeal. However, the Applicant could still call or write during custody to his friends/relatives in Bangladesh for assistance if he really had proofs to obtain there. He did not. I do not accept there is any merit in such complaint.

39. The Applicant has other complaints. I have reviewed the Director’s decision plus further decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had duly considered the Applicant’s claim. Their findings, conclusions and decisions were not Wednesbury unreasonable. The Director and the Adjudicator made no errors of law and there was no procedural unfairness. They had each 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 reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and the law. They considered the Applicant’s case carefully and applied the law correctly. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There is no substance in any of the Applicant’s complaints.

Conclusion

40. The Applicant's complaints are not reasonably arguable either against the Director or the Board. 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 Notice of Appeal was filed on 13 July 2018 and it provided the following grounds of appeal:

“The grounds of this appeal are that the Plaintiff (applicant) will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.”

Discussion

10.  In the determination of an appeal, this Court focuses on the decision of the Judge and we would only reverse that decision if the applicant 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, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

11.  With the aforesaid principle in mind, we find that the applicant has failed to put forward any viable ground of appeal.  He has failed to identify any error in the Judge’s decision.  In any event, the Judge had rightly found that the Board had carefully considered the applicant’s case and acquainted with the facts and the law correctly.  The Judge also took the correct view that the Board had adopted a high standard of fairness and was entitled to make those findings, conclusions and decisions which were all reasonable: see [39] of CALL-1 Form.  We do not see any error of law or procedures in the proceedings before the Board and agree with the Judge that leave to apply for judicial review should not be granted.

12.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.