HOSSAIN MUKTER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 176/2019

[2019] HKCA 882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 176 OF 2019

(ON APPEAL FROM HCAL NO 717 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the appeal against the decision of Deputy High Court Judge Josiah Lam on 2 April 2019 refusing leave to the applicant to apply for judicial review of the decision of the adjudicator of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1].

2.  The applicant is a national of Bangladesh who sneaked into Hong Kong from China in late October 2013 and was arrested on 6 November 2013.  He raised a non-refoulement claim on 8 November 2013.  He claimed that he would be harmed or killed by the Awami League (“AL”) as he was a member of the Chhatra Shibir which was the student wing of Jamaat-e-Islami (“JI”) and there were conflicts between AL and JI.

The Director’s decisions

3.  By a Notice of Decision dated 23 February 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on the grounds including torture risk[2], BOR 3 risk[3] and persecution risk[4]. 

4.  The Director did not accept that there would be real risk of harm upon the applicant’s return to Bangladesh because of the low intensity and frequency of past ill-treatment from the alleged enemies of the applicant.  Furthermore, the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director. 

5.  By a Notice of Further Decision dated 23 November 2016, the Director rejected the applicant’s claim in the absence of response from him to the invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds including BOR 2 risk[5].

The Board’s decision

6.  The applicant attended the hearing of the appeal against the Director’s decisions on 16 December 2016.  The Board assessed that the past ill treatments did not attain a level of minimum level of severe pain or suffering whether physically or mentally and such ill treatments were not very extreme, deliberate and brutal and thus were not a torture as defined.  There is also no evidence to suggest that active consent or acquiescence of any public official was involved.  The Board also found that the applicant failed to establish, even to the lowest standard applicable, that there is a real chance that he will be subjected to persecution if refouled.  Therefore, the Board rejected the appeal on 18 April 2018. 

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 25 April 2018 to seek leave to apply for judicial review against the decision of the adjudicator.

The judge’s decision

8.  The judge held that the applicant’s complaints are not reasonably arguable for reasons stated in paragraphs 36 to 48 of his decision dated 2 April 2019.  The judge reviewed the adjudicator’s decision under rigorous examination and anxious scrutiny and found that the adjudicator had proper basis for his decision which was not Wednesbury unreasonable, the adjudicator had made no errors of law and there was no procedural unfairness. As the applicant has no realistic prospect of success in the sought judicial review, the leave application was refused.

The grounds of appeal

9.  The applicant filed a Notice of Appeal against the decision of the judge on 12 April 2019.  His grounds of appeal as stated may be summarized as follows:

(1)  The judge has wrongly exercised his decision in coming to the conclusion that the adjudicator of the Board has not erred in his decision.  The adjudicator has wrongly exercised his case management power in deciding that the applicant lacks credibility. 

(2)  The process was procedurally unfair as the bundle was not read to the applicant prior to the oral hearing and was only interpreted to him whenever the adjudicator found it necessary to refer to certain paragraphs or documents. The applicant had no means of finding out what the rest of the bundle was.  He had been relying heavily on interpreter but his words had always been wrongly interpreted. 

10.  Similar grounds were covered in the original leave application.

Non-compliance of unless order

11.  The appeal was scheduled to be heard on 13 August 2019.  Directions were given by the Registrar of Civil Appeals on 21 May 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, he shall be deemed to waive his right to have an oral hearing for his appeal and elect to have his appeal disposed of on paper.

12.   The applicant failed to lodge skeleton argument not less than 28 days before the hearing of the appeal (ie on or before 16 July 2019).  As the unless order of the Registrar was not complied with, the hearing date of 13 August 2019 has been vacated pursuant thereto.  Accordingly, we will determine his appeal on paper.  The applicant has been informed about this by letter from the court dated 23 July 2019. 

Legal principles

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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 Country of Origin Information (“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.

15.  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 determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  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.

Analysis

17.  The applicant contended that the judge has wrongly decided that the adjudicator had not erred in his decision.  In particular, he submitted that the adjudicator was wrong in deciding that he lacks credibility.

18.  In fact, the applicant’s appeal was not dismissed by the adjudicator for lack of credibility.  The adjudicator dismissed the case mainly because the past ill treatments in the applicant’s case did not attain a level of minimum level of severe pain or suffering and there is no evidence to suggest that active consent or acquiescence of any public official was involved or that there is a real chance that he will be subjected to persecution if refouled, even to the lowest standard applicable. 

19.  The applicant has not provided any specifics or evidence in support which can refute the adjudicator’s findings.  Thus, this ground is without basis.

20.  The applicant also complained that the bundle was not interpreted to him before the hearing and his words were interpreted wrongly by the interpreter. 

21.  In the present case, interpreter services were provided at hearings at every stage and at the time when the applicant was assisted by Duty Lawyer. The high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: Re Gurung Sagar [2019] HKCA 658 para 12. 

22.  The bundle consists mostly of documents which had been seen or submitted by the applicant and there was no evidence to show that the bundle was served on the applicant in a manner that was in breach of any rules.  Besides, all court documents including the affirmation in support of the leave application and the notice of appeal filed by the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or he has access to language assistance of his own if needed. 

23.  In addition, the applicant’s complaint on the wrong interpretation of his words is just bare assertion without any specifics or elaboration.  There is no substance in this complaint.

24.  The ground relating to the lack of language assistance and/or inaccurate interpretation is without merit.  

25.  The applicant failed to demonstrate that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  None of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge. 

Disposition

26.  We dismiss the appeal as there is no merit in the appeal and no prospect of success in the intended application for judicial review.