SUJAN GAZI v. TORTURE CLAIMS APPEAL BOARD

CACV 171/2018

[2018] HKCA 519

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 171 OF 2018

(ON APPEAL FROM HCAL NO. 910 OF 2017)

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J U D G M E N T

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Hon Cheung JA (giving the judgment of the Court) :

I. The appeal

1.1  This is an appeal against the decision of Deputy High Court Judge (‘DHCJ’) Bruno Chan given on 11 May 2018 in HCAL 910/2017 when he refused to grant leave to the applicant to apply for judicial review.  The applicant had previously applied for leave to institute judicial review on the same matter in HCAL 302/2017 and was refused by DHCJ Woodcock on 8 September 2017. 

1.2  The applicant did not file written submission pursuant to the direction of the Civil Appeal Registrar dated 14 June 2018 (‘the direction’).  As a result the hearing date of the appeal i.e. 7 August 2018 was vacated.  We will deal with the appeal on paper pursuant to the direction.

II.    Background

1)     Factual background

2.1  The applicant is a Bangladesh national who came to Hong Kong illegally from Shenzhen on 27 December 2011.  He was arrested by the police on the same day for being a suspected illegal immigrant.  He was referred to the Immigration Department for further investigation on 30 December 2011.  On 31 December 2011, the applicant raised his torture claim.  He was subsequently released on recognizance on 11 February 2012.  He completed his non‑refoulement claim form on 10 July 2015.  The applicant claims that because of certain attacks from a political group called Awami League (‘AL’), he came to the realization that his life was in danger.  He decided to flee Bangladesh.

2)     The Director’s Decision

2.2  The Director of Immigration (‘the Director’) decided against the applicant’s torture claim on 17 February 2016.  The decision covered Bill of Rights (‘BOR’) Article 3 (Torture/inhuman treatment) risk, persecution risk and torture risk (‘the Director’s Decision’).  BOR Article 2 (Right to life) risk was not raised before the Director or the Torture Claims Appeal Board (‘the Board’).

3)  The Board’s Decision

2.3  The applicant appealed against the Director’s Decision.  After a hearing held on 17 January 2017, the Board dismissed the applicant’s appeal on 10 March 2017 (‘the Board’s Decision’).

4)  HCAL 302/2017

2.4  On 16 June 2017, the applicant filed a Form 86 under HCAL 302/2017 (not the present HCAL 910/2017) for leave to apply for judicial review of the Board’s Decision.  The application was out of time (original deadline 9 June 2018).  The supporting affirmation listed eight grounds for judicial review.  As mentioned earlier DHCJ Woodcock refused leave on 8 September 2017.  According to the Court record there was no appeal in HCAL 302/2017.

5)  HCAL 910/2017

2.5  Form 86 and its supporting affirmation in HCAL 910/2017 (i.e. the present application) were both filed on 20 November 2017.  The intended judicial review was against the Director’s Decision and the Board’s Decision.  The applicant relied on the same eight grounds of challenge as in HCAL 302/2017.

6)  Decision of DHCJ Bruno Chan in HCAL 910/2017

2.6  DHCJ Bruno Chan held in HCAL 910/2017 that as the applicant had confirmed in Court that the eight grounds for judicial review were the same grounds in HCAL 302/2017 and as DHCJ Woodcock had already determined that the applicant should not be given leave for judicial review in HCAL 302/2017, the principle of res judicata applied and the applicant’s new application in HCAL 910/2017 was an abuse of process.  The applicant’s application in HCAL 910/2017 was refused.

7) Decision of DHCJ Woodcock in HCAL 302/2017

2.7  DHCJ Woodcock has in detail explained her reasons why she had exercised her discretion to lift the applicant’s legal aid stay of proceedings for at least 42 days, citing the relevant ordinance and applicable case law.  The Judge also explained why there was no justification to indulge the applicant’s late filing of his Form 86 in HCAL 302/2017 by referring to the relevant legal principles for granting extension of time for judicial review.  Although these reasons were sufficient to dispose of the applicant’s leave application for judicial review in HCAL 302/2017, she further considered the merits of the applicant’s case.  Her decision was as follows :

‘ 20. I have considered, with rigorous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analyzed the material, claims and evidence carefully, logically and with caution. He also applied the correct standard of proof. The applicant’s complaints against him and the procedure undertaken are not made out. This finding also applies to the hearing before the Director.

21. I found no substance in the grounds of this application.  In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.  Many of the grounds are misleading and plainly inapplicable to this case.

22. The adjudicator rejected the applicant’s evidence in its entirety and gave full and cogent reasons why.  He carefully analysed the approach in assessing credibility following the relevant authorities.  Having rejected the applicant’s evidence and his claim, there was no need for the adjudicator to sufficiently research and enquire into the COI conditions, the existence of State protection or the possibility of internal relocation.  The references in the applicant’s grounds to these considerations do not apply here.  Whether he put weight on irrelevant COI considerations, cherry picked information, failed to objectively analyse information is otiose here.

23. The applicant relies on a procedural impropriety/unfairness ground in that his assigned duty lawyer failed him in the hearing before the Director.  In essence, it is said he was not represented properly and not afforded a fair procedure.  This is misleading when there was no hearing nor was the applicant represented by the duty lawyer in a hearing.  The Director attempted on many occasions to arrange an interview with the applicant but on each occasion the applicant failed to attend claiming he was ill without supporting medical evidence.  Ultimately the Director had to determine the matter by sending the applicant a written questionnaire which the applicant returned completed for the consideration of the Director.

24. 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.

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

III.   Notice of Appeal and supporting affirmation

3.  In the notice of appeal under the column dealing with the grounds of appeal the applicant simply states ‘Please refer to the Affirmation pages’.  The matter contained in the Affirmation was a repetition of his Form 86 with the addition of a number of authorities and the omission of the part entitled ‘Grounds of Review in Summary’.

IV.   Our view

4.1  The applicant has failed to identify any grounds of appeal against the decision of DHCJ Bruno Chan.  It is clearly an abuse of process to commence an identical application when a previous one on the same grounds had been refused by DHCJ Woodcock.  The citation of additional authorities does not assist the applicant because as pointed out by DHCJ Woodcock, the Board found the applicant’s case to be incredible.  The Board held :

‘ The responses given by the Appellant were so incoherent and inconsistent with what he had previously said, as well as so lacking in relevant,reasonableorappropriatedetail,thatitwasnotalwaysclearwhathewas claiming. After repeated further questions and attempts to clarify matters,materialandcentralaspectsofAppellant’sclaimwasquitedifferentinhisoralevidencetothat initially presented to the Respondent. Furthermore, despite repeated attempts to elicit details and a reasonable level of description of alleged events, the Appellant was singularly unable to make anything other than bald assertions. He was unable to place the events into any overall context, describe surrounding circumstances, provide any explanation for his alleged political motivations or to give any reasonable explanation for the marked differences between the account given at the hearing and that provided to the Respondent.’

4.2  In our view there is no reasonable arguable grounds for leave to be granted.  Accordingly the appeal is dismissed.