RE MD SHOHEL SHEAK

CACV 233/2018

[2018] HKCA 714

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 233OF 2018

(ON APPEAL FROM HCAL 1092/2017)

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JUDGMENT

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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 of 12 June 2018 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  The applicant came to Hong Kong illegally on 29 July 2009 and was arrested by the police on the same date.  He lodged his torture claim on 1 August 2009.  His claim was processed as a non-refoulement claim under the unified screening mechanism.  His claim was based on the fear that, if he returned to Bangladesh, he would be harmed or even killed by the people of the Awami League (“AL”) because he was a supporter of the rival political party Bangladesh Nationalist Party (“BNP”).

3.  The facts of this case were set out in [1] – [10] of the CALL-1 form dated 12 June 2018.

4.  By a notice of decision dated 13 March 2015, the Director of Immigration assessed the BOR 3 risk[1], the persecution risk[2] and the torture risk[3].   The director determined the risks against the applicant and rejected his claim for non-refoulement protection.

5.  The director had also assessed the applicant’s claim based on the BOR 2 risk[4].  By a notice of further decision dated 10 July 2017, the director decided against the applicant.

6.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 23 November 2017, and the applicant testified at the hearing.  The board found that the applicant’s evidence was not credible.  The appeal was dismissed on 8 December 2017.

The judge’s decision

7.  On 15 December 2017, the applicant lodged a Form 86 to apply for leave to bring an application for judicial review.  The intended application for judicial review was against the decision of the board. 

8.  The judge heard the application on 17 May 2018.  After hearing the applicant and having given due consideration of the decisions of the director and the board, the judge refused to grant leave to the applicant to apply for judicial review.  The judge’s reasons for refusal were set out in [33] – [47] of the CALL-1 form as follows:

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

34. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

35. The Applicant has filed a barrage of complaints. Most of them are vague. The Applicant cannot elaborate or specify his complaints in court.

36. It is not true that the Director had not considered the Applicant’s claim with respect to BOR2 risk. The Director in his letter dated 11 May 2017 invited the Applicant to submit additional facts for the consideration of BOR2 risk. However, the Applicant failed to respond. In such circumstance, the Director was entitled to further consider the Applicant’s claim in relation to BOR2 risk without holding further hearing. In court, the Applicant confirmed that he had submitted everything to the Director and the Adjudicator. He thus had presented his case fully to them.

37. The Director by his decision dated 13 March 2015 and further decision dated 10 July 2017 fully and carefully dealt with the Applicant's claim with respect to all the four applicable grounds including BOR2 risk.

38. The Applicant complained there was insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 13 March 2015.

39. The Applicant failed to show this court how his case would be undermined or prejudiced by the lack of further legal representation only in the later stages of the screening process. The Court of Appeal had repeatedly stated that an applicant of non-refoulement claim did not have an absolute right to free legal representation at all stages of the proceedings.

40. The Applicant complained that he received the appeal bundle only a short time before the appeal hearing.

41. 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.

42. The Director in his letter dated 31 May 2018 confirmed that the Applicant received the appeal bundle on 16 November 2017 (Fri). The hearing before the Adjudicator was scheduled on 23 November 2017 (Fri). The appeal bundle was served 7 calendar days (or 6 working days) prior to the date of the hearing. It was in time.

43. The Director also pointed out in his letter that the appeal bundle consisted mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim by the immigration officer.

44. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents for him. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

45. A few days’ time certainly was not a long period. However, the Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. A few days could 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 the appeal. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator.

46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand.

47. 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. 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’s report showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.” (footnote omitted)

The appeal

9.  The applicant filed a notice of appeal on 15 June 2018.  No ground of appeal was contained in the notice of appeal.  The applicant set out the following grounds in his supporting affirmation dated 15 June 2018:

(1)   The judge was wrong in law in holding that there was no state acquiescence or involvement; AND

(2)   The judge failed to provide detailed reason in support of [his] decision.

10.  In Exhibit A to the said affirmation, the applicant also put forth a number of grounds.  Save and except the ground that the board misdirected himself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future, the other grounds were repetitions of those considered by the judge.

11.  The applicant also lodged his skeleton argument on 7 September 2018. 

12.  We heard the appeal on 12 October 2018.

Discussion

13.  Before we addressed the grounds of appeal, it is necessary to highlight the following general propositions:

(a)   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.

(b)   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 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.

(c)   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.

(d)   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.

(e)   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.

(f)   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.

14.  In the present case, after having rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the board. 

15.  In this appeal, the applicant did not put forth any viable ground to reverse the judge’s decision. There is no basis for suggesting that the judge did not give adequate reasons.

16.  Given the facts of this case and the findings of the Board, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

17.  The board dismissed the appeal because it found the applicant to be an incredible witness.  It is therefore plain to us that there is no merit in his contention that the board required an applicant to have experienced torture in the past in order to establish substantial grounds for being subjected to torture in future.

18.  In substance, the applicant is trying to argue the matter afresh and his arguments in this appeal were basically regurgitation of the arguments advanced before, and duly rejected by, the judge.  As stated above, this is not a course open to an applicant on appeal.

19.  Having considered the materials available before us, as well as the submissions of the applicant, we agree with the judge that leave to apply for judicial review should be refused.

20.  For these reasons, we dismiss the appeal.