H K KOHINOOR v. WESLEY WONG, ESQ.

CACV 12/2019

[2019] HKCA 496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 12 OF 2019

(ON APPEAL FROM HCAL NO 499 OF 2018)

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J U D G M E N T

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Hon Poon JA (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 8 January 2019, refusing to grant the applicant leave for judicial review.

BACKGROUIND

2.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 25.  We shall not repeat the same here.

3.  Briefly stated, the applicant is a national of Bangladesh.  He came to Hong Kong on 25 March 2005 as a visitor for 14 days until 8 April 2005.  He did not depart and overstayed.  He surrendered to the police on 19 November 2009 and was referred to the Immigration Department for investigation.  On 22 November 2009, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the members of the Bangladesh Nationalist Party (“BNP”) and the Awami League (“AL”) as he had supported the opposition party, the Bangladesh Communist Party (“BCP”).  There was also an arrest warrant issued by the Bangladeshi police against him for his violation of a bail condition.

4.  By a Notice of Decision dated 29 May 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 Notice of Further Decision dated 1 March 2017, the Director rejected his claim on BOR 2 risk.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) against the decision of the Director.  After the hearing on 21 December 2017, the Board dismissed the appeal on 15 March 2018. The Board found that the applicant’s evidence was implausible and incredible. Even on the applicant's own account of events, the Board did not consider the applicant had been inflicted with ill-treatments to a minimum level of severity. Further, the fact that he was in Hong Kong for 5 years before he surrendered to police showed that he did not have an intention to seek non-refoulement protection.  In any event, reasonable state protection and internal relocation were available to the applicant.  For the aforesaid reason, the Board dismissed the applicant’s non-refoulement claim on all applicable grounds.

THE JUDGE’S DECISION

6.  On 27 March 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  The applicant put forward the following grounds for his intended challenge :

(1)   unlawfully fettering its discretion;

(2)   acting in a procedurally unfair manner;

(3)   rendering unreasonable or irrational decision;

(4)   failing to meet the greater care and duty owed to a self-represented claimant;

(5)   failing to carry out sufficient research and inquiry into the country of origin information (“COI”);

(6)   failing to take into account or putting proper weight on relevant COI, cherry-picking COI and putting weight on irrelevant COI in the consideration of his claim;

(7)   failing to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights exists in Bangladesh;

(8)   failing to analyse and assess whether state protection exists in Bangladesh and misdirecting himself as to the extended meaning of state protection;

(9)   taking into account and putting weight on irrelevant consideration or relying on incorrect or inaccurate facts;

(10)   failing to call for psychological and psychiatric evaluations and reports on the applicant;

(11)   applying the incorrect standard of proof in his decision;

(12)   failing to provide the applicant with legal representation; and

(13)   failing to provide the applicant with language assistance.

7.  On 8 January 2019, 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] – [55] 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’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). 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.’ (CACV 219/2018 [2018] HKCA 570, para 14(1))

36.   It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 1 March 2017 was on BOR2 risk. The Applicant failed to submit additional facts for the Director’s consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director's further decision must be read in conjunction with his earlier decision dated 29 May 2015, where there was a detailed analysis of the Applicant’s case.

37.   The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant failed to provide particulars in this regard.

38.   The Applicant complained there was a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 29 May 2015.

39.   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 (CACV 284/2017 Re Paswan Shibu Lal, para 21). 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.

40.   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 qualified interpreters while he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

41.   The Applicant complained he received the appeal bundle only a few days before the Board hearing scheduled for 21 December 2017.

42.   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.

43.   The Director in his letter dated 11 September 2018 stated the appeal bundle was served on the Applicant on 14 December 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing. It was served on the Applicant in time.

44.   The 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.

45.   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.

46.   The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

47.   The Adjudicator studied relevant COI and concluded that reasonable state protection and internal relocation were available to the Applicant. His conclusion was not Wednesbury unreasonable.  In fact, those were not real issues as the Adjudicator actually did not believe the Applicant was a genuine non-refoulement protection seeker.

48.   For the same reason, there was no need for the Adjudicator to call for psychological or psychiatric reports, or to evaluate and 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 himself in law or applied the wrong standard of proof.

51.   The Applicant complained the Adjudicator concluded his claim too fast. He accused the Adjudicator did not listen to him and did not understand what he said. The accusations were not supported by evidence. The Adjudicator’s report showed the Adjudicator grasped the Applicant's case well and gave it due consideration.

52.   The Applicant complained the Adjudicator asked him irrelevant questions of how he survived in Hong Kong.

53.   The Applicant only surrendered to the authority in November 2009. That was several years after he last entered Hong Kong in March 2005. The Adjudicator was entitled to find out all the circumstances of his stay in Hong Kong for proper assessment. After due inquiry and consideration, he did not believe the Applicant was a genuine non-refoulement protection seeker. That conclusion was not Wednesbury unreasonable.

54.   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 of the case. 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. None of the Applicant’s complaints is substantiated.

Conclusion

55.   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.”

The Appeal

8.  The applicant filed the Notice of Appeal on 14 January 2019 in which he advanced the following grounds of appeal :

“ I am not satisfied with the decision because my life is not save (sic) in my country. Please help me to stay in Hong Kong until I have problem.”

9.  In the written submissions, the applicant repeated his case that he would face risk of harm or even be killed by his enemies if refouled as his enemies are powerful and would bribe the police to harm him upon his return.

10.  We heard the appeal on 30 April 2019.  The applicant again reiterated, by way of oral submission, that his life would be at risk if he were refouled to Bangladesh and urged for his case to be considered properly.

DISCUSSION

11.  The applicant did not put forward any viable ground to reverse the judge’s decision.  The applicant’s allegation had already been thoroughly examined by the Board that he would not face a real risk of harm or extortion if refouled.  We endorse the Judge’s finding that the applicant’s case was lack of merit and he had failed to raise any valid ground to challenge the Board’s decision.  We can discern no error of law, nor can we see any relevant matters which the Judge had failed to take into account, nor can it be argued that the Judge was plainly wrong in refusing leave for judicial review.

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