RE ISLAM RAFIQUL

CACV 219/2018

[2018] HKCA 570

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 219 OF 2018

(ON APPEAL FROM HCAL NO 1150/2017)

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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 on 5 June 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh. He entered Hong Kong illegally and was arrested on 17 August 2014. On 20 August 2014 he lodged a non-refoulement claim.

2.  His claim was based on alleged threats from supporters of Awami League.  He himself came from a family supporting the opposite party, Bangladesh Nationalist Party.  According to the applicant, in 2013 these supporters forced the applicant to either join their party or pay a substantial sum of money.  After the applicant refused, he was assaulted and threatened.  He had made reports to the police who refused to take action.

3.  The Director decided against the claim on 20 July 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“Director’s Decision”).  By a Further Decision of 21 July 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

4.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 21 November 2017, the Board dismissed the appeal on 21 December 2017 (“Board’s Decision”).

5.  The intended judicial review was in respect of the Board’s Decision only.  The Form 86 was filed by the applicant on 28 December 2017.

6.  In his affirmation dated 28 December 2017, the applicant gave the following grounds for judicial review:

(1)  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;

(2)  The Board cherry-picked COI information and relied on outdated COI;

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

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

(5)  The Board took into account incorrect facts and failed to give weight to facts favorable to the applicant.  There were no particulars for this ground;

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

(7)  The Board applied incorrect standard of proof. There were no particulars for this ground;

(8)  The duty lawyer failed at the first instance to give sufficient legal representation.  There were no particulars for this ground.

7.  The applicant gave the following particulars for some of the grounds for judicial review above:

(1)  The hearing bundle with documents all in English was provided to him just a few days before his appeal hearing before the Board and therefore with insufficient time for him to properly prepare for the hearing.  The applicant was confused at the hearing and the Board wrongly concluded he was not credible;

(2)  The Board had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to Bangladesh;

(3)  The Board made a decision on BOR2 risk even though this part of the claim was not screened or judged by the Director.

8.  The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge gave the following reasons in refusing leave at [35] to [46] of the CALL-1 Form of 5 June 2018:

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

36. 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’.

37. The Applicant has filed a barrage of complaints. Most of them are vague. I shall first deal with the more specific ones.

38. The Applicant complained the Director had not properly screened his claim on BOR2 risk. That is not true. The Director had invited the Applicant to submit additional facts for the consideration on BOR2 risk but the Applicant failed to do so. The Director then rendered his decision on 21 July 2017. That further decision should be read in conjunction with the Director's earlier decision dated 20 July 2016. The Director had carefully and fully considered the Applicant’s claim by those two decisions, which dealt with all the four applicable grounds: torture risk, persecution risk, BOR3 risk and BOR2 risk.

39. The Applicant complained that he had not been given sufficient legal assistance. He had been represented by the Duty Lawyer Service up to the Director's decision rendered on 20 July 2016. The Applicant failed to show this court how his claim was prejudiced or undermined by the lack of legal representation only in the later stages of his claim. 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.

40. The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Pakistan a consistent pattern of gross, flagrant or mass violations of human rights. The Adjudicator found the Applicant's claim incredible. In light of such finding, it was not necessary for the Adjudicator to go on to discuss further issues such as human rights violation, state acquiescence, state protection, internal relocation and so on.

41. The Applicant also complained the Adjudicator did not call for psychological and psychiatric reports. However, the Applicant failed to justify there was such a need. In fact, the Adjudicator disbelieved his claim.

42. The Applicant further complained that he did not have sufficient time to prepare for the appeal before the Adjudicator. He also said he was confused during the hearing. I have reviewed the Adjudicator’s report dated 21 December 2017. There is no evidence that the Applicant had complained he was short of time for preparation or he was confused during the hearing. He had not requested the Adjudicator for adjournment. In fact, he answered the Adjudicator’s questions. I do not accept the Applicant had no time to prepare for the appeal or that he was confused during the appeal hearing.

43. The other complaints lacked specifics. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant's complaints was substantiated.

44. In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Adjudicator, who 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’s report showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

45. The Director is an interested party. I have also reviewed his decisions under ‘rigorous examination and anxious scrutiny’. What has been said of the Adjudicator in paragraph 44 above is also true of the Director. His findings, conclusions and decisions were not Wednesbury unreasonable. He had also adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

46. 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.”

9.  In the notice of appeal of 12 June 2018 and the affirmation of the same date, the applicant repeated the 8 grounds of review in his affirmation dated 16 August 2017.  He added a new ground (ground 1) that the Board misdirected itself on the law when assessing the risk of torture in the future.

10.  The applicant did not comply with the directions made on 12 July 2018 that he should lodge skeleton argument on or before 8 August 2018.  He did not lodge any skeleton argument despite the Court’s direction that the applicant would be treated as waiving his right to an oral hearing if he did not lodge skeleton submissions in accordance with those directions and the Court would then process the appeal on paper.

11.  The requirement for lodging of skeleton submissions in an appeal is prescribed by Practice Direction 4.1.  The compliance with such requirement on the part of an applicant is important for the proper and effective functioning of our appeal process.  The skeleton submissions are important for the preparation of an appeal, both by the judges and the litigants.  This Court does not permit unfocused oral presentation of material at an oral hearing.  The non-compliance with such requirement substantially impairs the exercise of case management power of the presiding judge at an appeal, including the effective management of the oral hearing.  In view of the heavy demand on court’s time due to large volume of appeals, in recent times this Court has taken a firm stance in all cases on the requirement to lodge skeleton submissions.  Non-compliance with such requirement, notwithstanding an unless order, is treated as the abandonment of the right to an oral hearing. 

12.  The hearing date of 22 August 2018 was therefore vacated due to the applicant’s failure to comply with the unless order of 12 July 2018 by not lodging skeleton submissions by 8 August 2018. 

13.  We proceeded to process the appeal on the basis of the materials already lodged by the applicant.

14.  Before we address the applicant’s case, we would highlight the following general propositions in this Court’s approach to an appeal of this nature:

(1)  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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(2)  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 or for running arguments which could and should have been raised but not raised before 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: 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.

(3)  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: see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(4)  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, see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(5)  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.

(6)  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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).  See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

15.  In the present case, the applicant simply regurgitated arguments placed before the judge, the content of Exhibit A in his affirmation of 12 June 2018 is basically the same as his affirmation of 28 December 2017.  The latter had been duly considered by the judge. 

16.  Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations. 

17.  The applicant added one ground at p.19 of Exhibit A, misdirection in law.  He alleged the Board erred by taking into account that the applicant had to have experienced torture in the past in order to establish substantial grounds for belief of risk of torture in the future. He did not explain the basis on which he advanced this allegation.  Having read the decision of the Board, we do not accept that the Board had made that error.  The Board correctly identified the approach in assessment of risk at [37] to [39] of its Decision:

“ 37. The Court of Final Appeal’s wording in Ubamaka takes account of the fact that, in expulsion cases, the assessment to be made is of the risk that the claimed ill-treatment may occur in the future. Since a possible future event is not provable, the decision-maker can only make a prognosis based on the material facts found. The BOR 3 jurisprudence does not require certainty that the alleged ill-treatment will actually occur, and it has been found that a ‘real risk’ will be sufficient; however, it is necessary for the Appellant to establish that there are ‘substantial grounds’ which enable the conclusion that he will face a real risk of ill-treatment if refouled.

38. For the reasons discussed above, I do not accept the Appellant’s claim to have been actively involved in politics in Bangladesh. I therefore do not accept that he was threatened by members of the AL because he was a prominent JCD leader in his area, or that there is a real risk of such harm should he return to Bangladesh. In making these findings, I note that the Appellant’s evidence at the hearing about the threats that he claimed were made against him was confused and in some respects inconsistent with the claims he had made earlier to the Immigration Department.

39. In the circumstances, I am not satisfied that the Appellant has established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment as claimed if he returned to Bangladesh.”

18.  The applicant added some particulars for the other grounds at p.19-23 of Exhibit A.  He did not explain why he did not give these particulars in the Court below.  In substance, the applicant attempted to argue the matter afresh in the appeal by raising some general assertions.  As stated above, this is not a course open to an applicant on appeal.  His belated particulars were general assertions against the Board without any cogent and specific evidence supporting the case of the applicant.  In our view, none of the grounds advanced in the applicant’s supporting affirmation has any merit.

19.  As regards the complaint of insufficient inquiry of COI materials, the applicant did not put forward the COI materials he now alluded to[1] (but without producing the same) before the board or the court below.  In any event, those materials are outdated and cannot be admitted as evidence in this appeal.

20.  The only attempt by the applicant to pinpoint the alleged errors of the judge is at para 2 of his affirmation of 12 June 2018 where he said:

“ (1) The Honorable Deputy High Court Josiah Lam was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Deputy High Court Josiah Lam failed to provide detailed reason in support of her decision. (sic)”

21.  These grounds are obviously unmeritorious.  As seen above, the judge had given adequate reasons for refusing leave and he did not consider there was any need by the Board to make any finding on state acquiescence or involvement.  

22.  For these reasons, the appeal has no merit and we dismiss it accordingly.