RE HOSHAN MOHAMMAD ALAMGIR

CACV 390/2018

[2018] HKCA 945

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 390 OF 2018

(ON APPEAL FROM HCAL NO 760 OF 2017)

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JUDGMENT

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Hon Fung J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 31 July 2018 (published as [2018] HKCFI 1728) refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  He allegedly entered Hong Kong illegally on 17 March 2014, and was arrested by the police on the same date.  He lodged his claim for non-refoulement protection on 19 March 2014.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by his cousin (who was a local leader of the ruling political party Awami League) because of his political affiliation with Jamaat-e-Islami.  The facts of this case were summarised by the judge in [3]–[5] of her decision, and we do not propose to repeat them here.

3.  The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, namely, the BOR 2 risk,[1] the BOR 3 risk,[2] the persecution risk[3] and the torture risk,[4] and, by a notice of decision dated 6 February 2017, determined the risks against him.

4.  The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 11 September 2017.  Having considered the applicant’s evidence, as well as the relevant country of origin information (“COI”), the Board did not find that the applicant’s case warranted non-refoulement protection in Hong Kong.  The Board assessed that there was no involvement of state agent, that state protection was available to the applicant, that there was no evidence of state acquiescence, and that internal relocation was a viable option for him. Accordingly, the Board dismissed the applicant's appeal/petition on 28 September 2017.

The judge’s decision

5.  On 12 October 2017, the applicant filed a Form 86 seeking leave to apply for judicial review against the Board’s decision.  In the Form 86, the applicant referred to his affirmation in support of the application for grounds for seeking relief.  In his affirmation, the applicant advanced the following grounds for the intended judicial review:

(1)   The Board failed to carry out sufficient research and inquiry into the COI conditions and failed to have regard to relevant and up-to-date COI research;

(2)   The Board cherry-picked COI 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 state protection in Bangladesh.  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; and

(9)   The Board failed to arrange an oral hearing for the applicant.

6.  The applicant also furnished the following particulars for some of the above grounds for seeking relief:

(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;

(2)   The applicant answered all the questions honestly and was aggravated by the Board’s adverse finding on credibility;

(3)   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 his home country;

(4)   The Board made a decision on BOR 2 risk even though this part of the claim was not screened or judged by the Director.

7.  After an oral hearing on 13 March 2018, the judge refused to grant leave to the applicant to apply for judicial review. The judge’s reasons in refusing leave were set out in [11]–[18] of her decision:

“11. I have considered with [rigorous] examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against her and the procedure undertaken are not made out. I find no substance in the grounds of this application. There were nine grounds but the ninth ground was struck out during the oral hearing; the applicant confirmed that there was an oral appeal hearing conducted which that ground claimed he was unfairly denied.

12. There are eight other grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, 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. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

13. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up-to-date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did consider ample relevant, up-to-date and objective COI and quoted from COI at length. These grounds are not arguable.

14. 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. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint. There is no merit in this criticism.

15. The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. This is misleading and plain wrong when the adjudicator made no finding against the applicant’s credibility. There is no merit in this criticism.

16. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director did not separately screen and assess the BOR 2 risk claim. It was dealt with at the same time as the other applicable grounds and rejected at the same time in his decision dated 6 February 2017. When the applicant lodged an appeal/petition, it was against the BOR 2 risk claim and the other risk claims.

17. 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.

18. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.”

The appeal

8.  On 14 August 2018, the applicant filed a notice of appeal, together with his affirmation in support.  In the notice of appeal, the applicant referred to his affirmation for the grounds of appeal.

9.  The applicant deposed in the affirmation as follows:

“(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.” (sic)

10.   In Exhibit A to the affirmation, the applicant by and large repeated the grounds set out in his affirmation in support of the application for leave to apply for judicial review.  A new ground (ground 1) that the Board misdirected itself on the law when assessing the risk of torture in the future was added; and the last ground in the leave application that the applicant was denied of hearing before the Board was withdrawn.

11.   The applicant lodged his Skeleton Submissions on 7 November 2018.  In it, the applicant submitted that high standards of fairness were required in determination of a torture claim, that the Board should have approached the appeal by considering the applicant’s COI, and that the decision maker was under a common law duty to act fairly.

12.   We heard the appeal on 6 December 2018.

General principles

13.   Before we address the merits of the appeal, we would highlight the following general propositions in respect of appeals in non-refoulement cases:

(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.

(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. 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.

(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.

(4)   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.

(5)   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.

Discussion

14.   In the present case, the Board assessed the risk to life and limb by looking at a wide range of COI materials of organizations of high international standing and considering the Appellant’s personal circumstances against that background.  The Board noted reports on widespread corruption and police dysfunction in Bangladesh on the one hand, and improvement upon the human rights and police reform in the country more recently.  The Board also noted that although the Appellant claimed to have received threats to his person, there was no actual harm inflicted. Considering the status of the Appellant as well as that of the alleged aggressor (especially lack of his official capacity in the state), the Board concluded the claim of risks was not sufficient to justify non-refoulment, especially the COI materials on feasibility of relocation in Bangladesh.  The Board found a lack of involvement of state agents, the availability of state protection, the absence of state acquiescence, and the viability of internal relocation, and rejected the applicant’s claim.  The Judge was perfectly entitled to have concluded that the Board did look at the materials upon an anxious enquiry with a high standard of fairnessbased on its evaluation of evidence.  As we have explained above, evaluation of evidence is within the province of the Board, with which the court in its judicial review jurisdiction will not likely interfere.  After having rigorous examination and anxious scrutiny of the materials available before her, the judge did not find any fault in the decision 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. 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.

16.   Plainly, the new ground regarding the misdirection of the Board to assess risk in the future has no merit.  Apart from the fact that it has not been canvassed in the Court of First Instance, the ground is not reasonably arguable in light of the Board’s findings in favour of state protection and internal relocation.  The rest of the arguments set out in Exhibit A were only regurgitation of the arguments advanced before, and duly rejected by, the judge.  As stated above, this course cannot avail the applicant on appeal.

17.   Having considered the materials available before us, we cannot find any ground that justifies a reversal of the judge’s decision either.  We agree with the judge that leave to apply for judicial review should be refused.

18.   For these reasons, we dismiss the appeal.