RE ALOM SARDER

CACV 127/2019

[2019] HKCA 681

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 127 OF 2019

(ON APPEAL FROM HCAL NO 213 OF 2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 6 March 2019 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 29 July 2016 and 8 September 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 22 December 2013 illegally and was arrested by the police on 23 December 2013.  He lodged a non-refoulement claim on 27 December 2013.

3.  The applicant’s claim was based on threats from members of an opposing political party. The details of the applicant’s claim have been summarised by the judge at [2] to [9] of the CALL-1 Form.

4.  By a Notice of Decision dated 29 July 2016 (“the Director’s First Decision”), the director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 8 September 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 10 October 2017, the Board dismissed the appeal on 26 January 2018 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection. At [85] of the Board’s Decision, the Board found that the applicant’s evidence was not reliable.

The deputy judge’s decision

7.  The applicant filed a form 86 on 12 February 2018 which contained no ground for seeking relief. In the affirmation in support of the leave application dated 12 February 2018, the applicant advanced the following grounds for judicial review which have been summarised by the judge at [21] – [25] of CALL-1 Form:

“21. In his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.

22. The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (“COI”); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed 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; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

23. The Applicant complained there were failures by the assigned duty lawyer resulting in a lack of and/or insufficient legal representation.

24. The Applicant further complained he was given the appeal bundle only a few days before the Board hearing. As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.

25. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.”

8.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [31] to [47] of the CALL-1 Form:

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

32. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’. Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.”

33. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director dealt with that last applicable ground in his further decision dated 8 September 2017.

34. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 July 2016. He complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

35. The Applicant complained there were a lack of and/or insufficient legal representation. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings. The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

36. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

37. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

38. 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. There was no evidence the rules had been breached.

39. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.

40. A few days certainly were not a long period but could still 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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

41. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

42. The Adjudicator did not accept there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

43. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he disbelieved the Applicant's claim and did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports.

44. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.

45. There was also no evidence the Adjudicator applied the wrong standard of proof.

46. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision 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 was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

47. The Applicant’s complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.”

Grounds for appeal

9.  In the  Notice of Appeal dated 14 March 2019 the applicant advanced the following grounds of appeal:

“1. The Learned Judge was wrong as a matter of law for not having applied the principle of irrationality to the decision made by the [Director] and the [Board].

2. The [Board] has failed to give sufficient chance to the applicant to arrange relevant evidence to his non-refoulement claim as well as his appeal.

3. The Applicant will face hardship if he is to return back to his home country and that the [Board] has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.

4. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.

5. The Learned Judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the Decision of the Director whereby the Director and [Board] was required to give reasons justifying the Decision”

10.  In his skeleton submissions dated 3 May 2019, the applicant referred to a number of decisions on high standards of fairness and on unreasonableness, and to section 37ZT of Part VIIC of the Immigration Ordinance, Cap. 115, without explaining how they were relevant to his appeal. He submitted that the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant.

11.  The applicant agreed by a letter of 15 March 2019 that the appeal could be heard by two judges.  We heard the appeal on 10 June 2019.

Discussion

12.  Grounds 2-4 of the Notice of Appeal are concerned with the alleged errors by the Board and the Director.  In his skeleton submissions, he submitted that the Board acted in a procedurally unfair manner in dealing with the applicant’s application without properly assessing the credibility of the applicant. These grounds do not raise any error on the part of the judge.  These grounds are thus not viable grounds of appeal.

13.  In Grounds 1 and 5, the applicant alleges that the judge had not applied the principles concerning irrationality and procedural unfairness in dismissing his leave application for judicial review.  These grounds are vague and lack particulars.  We have carefully considered the analysis by the judge at [31] – [47] of CALL-1 Form.  We are of the view that the judge did not make any of the errors alleged by the applicant.

14.  The applicant failed to explain how the cases referred to in his skeleton submissions are relevant.  They therefore do not constitute a valid ground of appeal.

15.  In conclusion, the applicant did not, either in the notice of appeal or his skeleton submissions identify, any error of law by the judge, any relevant matter that he failed to consider, or any other reason why the refusal of leave for judicial review was plainly wrong. Nor can we discern any.

16.  There is no merit in the appeal and we dismiss the appeal accordingly.