RE MASUD

CACV 251/2018

[2018] HKCA 819

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 251 OF 2018

(ON APPEAL FROM HCAL NO. 570 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 Woodcock (“the Judge”) on 11 June 2018 in HCAL 570/2017 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 entered Hong Kong illegally on 17 July 2014 and was arrested on the same day.  On 16 March 2016, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by members of the Awami League (“AL”) because of his active participation in the Bangladesh Nationalist Party (“BNP”).

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1246.  We shall not repeat the same here.

5.  By the Notice of Decision dated 15 April 2016, 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 19 June 2017, the Director also assessed the applicant’s claim on BOR 2 risk and decided against him.  

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  After a hearing held on 20 July 2017, the Board dismissed the appeal on 18 August 2017.  The Board found that the applicant’s evidence was inconsistent and implausible and the Board was not satisfied that his claim was reliable.  The Board further found that even if the applicant’s case was accepted, the alleged risk of ill-treatment did not attain the minimum severities even to the lowest standard.  The Board confirmed the Director’s decisions that the applicant had failed to establish his non-refoulement claim under all applicable grounds. 

The Judge’s decision

7.  The intended application for judicial review was in respect of the decision of the Board. The Form 86 filed on 31 August 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant set out the following grounds for judicial review:

(1)  Failing to make sufficient and proper inquiry into the Country of Origin Information (“COI”).

(2)  Failing to take into account and put sufficient weight on the relevant COI; cherry picked and put weight on COI which was of little or no relevance to the applicant’s case.

(3)  Failing to evaluate and make a finding if a consistent pattern of gross, flagrant or mass violations of human rights existed in Bangladesh.

(4)  Failing to assess if state protection exists in Bangladesh.

(5)  Making irrational decision by taking into account irrelevant considerations and failing to take into account facts and inferences that were favourable to the applicant.

(6)  Failing to call for psychological and psychiatric reports of the applicant.

(7)  Applying incorrect standard of proof in making decision.

(8)  There was a lack of legal representation.

8.  On 11 June 2018, the Judge gave her 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 [10] – [17] for her refusal to grant leave:

“ Leave to apply for judicial review

10. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

11. There are eight grounds in this affirmation and most contain no particulars. Those include grounds 5, 6, 7 and 8. As an example, for ground 6, it was never part of the applicant’s case there was a need for psychological or psychiatric evaluation. For ground 7, the adjudicator certainly set out the correct standard of proof in his decision. There are no particulars here to illustrate where he has applied the incorrect standard. For ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant; it is a bare assertion. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. These grounds have no merits.

12. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up‑to‑date COI information and research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. The adjudicator considered COI material and State protection; he cited his references. He had no reason to go into great detail considering the reason he dismissed the applicant’s appeal yet he did. These grounds are not arguable.

13. Ground 3, a failure 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, has no merits. The adjudicator did not believe the applicant was a witness of truth; not a genuine claimant. He had no need to go on to evaluate or make such a finding of fact in relation to any violations of human rights in Bangladesh under such circumstances. There is no merit in this ground.

14. In addition, the applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. I was satisfied the applicant had the assistance of an interpreter and he confirmed during the oral hearing to this court that he had the procedure of the hearing explained to him by the interpreter at the appeal. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.

15. There is a complaint that the Director did not assess the applicant’s BOR 2 risk claim before it was dealt with by the adjudicator of the TCAB. This is misleading when clearly the Director’s decision was made before the determination of the TCAB and it is referred to in the adjudicator’s decision.

16. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

17. In my judgement, the applicant’s claim is not reasonably arguable. There is no realistic prospect of success therefore, I refuse leave for judicial review.”

The Appeal

9.  The Notice of Appeal was filed on 20 June 2018.  In the applicant’s supporting affirmation filed on the same day, he advanced the following grounds of appeal:

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

(2) The Honorable Deputy High Court Judge Madam WOODCOCK failed to provide detailed reason in support of her decision.”

10.  Exhibit A annexed to the applicant’s supporting affirmation contained various grounds for judicial review against the Director and the Board.  They were canvassed at the lower court hearing and were duly rejected by the Judge.

Discussion

11.  Ground 1 is lacking in particulars and substance.  The Judge found at [12] of the CALL-1 Form that the Board, after due consideration of the relevant and up-to-date COI, came to the right conclusion that State protection was available.  We do not see any error of law in the Judge’s finding and Ground 1 is not reasonably arguable.

12.  Ground 2 is a bare allegation unsupported by any reason or argument.  As is apparent from the parts of the judgment as set out in paragraph 8 above, this allegation is without merit.  The Judge clearly explained the reasons for her decision in those paragraphs of the CALL-1 Form.

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