RE HASSAN MAHEDI

CACV 214/2019

[2019] HKCA 994

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 214 OF 2019

(ON APPEAL FROM HCAL 931 OF 2018)

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J U D G M E N T

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Hon G Lam J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) as set out in Form CALL‑1 dated 30 April 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 981. The intended judicial review is against the decision of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office (“the Board”) dated 18 May 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 12 August 2016 (“the Director’s First Decision”) and 9 August 2017 (“the Director’s Second Decision”) rejecting the applicant’s non‑refoulement claim.

2.  The Director’s First Decision and the Director’s Second Decision will be referred collectively as “the Director’s Decisions”. 

Background

3.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 17 August 2014 and was arrested by the police on the same date.  He lodged a non‑refoulement claim on 19 August 2014. 

4.  The details of the applicant’s claim and his personal background were set out in paragraphs 5‑6 of the Director’s First Decision, and paragraph 11 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by supporters of the Awami League (“AL”).  According to the applicant, he is a member of Jubo Dal, one of the key front organizations of the Bangladesh Nationalist Party (“BNP”). In around 2012, he established a business called Sheikh Mobile Point in Muktijudda Market, Tongibari.  The business went well until mid‑2013 when the AL came into power and started carrying out searches for people who participated in opposing activities.   In May or June 2013, the applicant started to receive phone calls asking him to join the AL members club.  He refused to do so.  In May 2013, a group of men came to his shop demanding for money.  His shop was ransacked and he was also slapped and punched.  A few days later, he was taken to the police station upon the accusation that he had carried out violence during public protests.  He was physically and mentally ill-treated at the police station.  Before he left Bangladesh, he was detained several times from late 2013 to early 2014.  

The Director’s Decisions and the Board’s Decision

6.  In the Director’s First Decision, the Director assessed the torture risk,^[1] the BOR 3 risk^[2] and the persecution risk.^[3]  The Director’s Second Decision covered the BOR 2 risk^[4] assessment.  The Director did not accept that the applicant was a genuine non‑refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 21 March 2018, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, the Board concluded that the applicant had failed to establish a case for non‑refoulement protection on any of the applicable grounds and dismissed his appeal.

8.  The Board refused to accept that the applicant was indeed a member of the Jubo Dal or that he had participated in any Jubo Dal activities.  His evidence was problematic and unpersuasive even after taking into account factors such as passage of time, trauma and stress that could lead to memory issues.  It further found that the applicant’s version of event in relation to the accidents was implausible and concluded that the applicant did not face any real risk of harms.  Essentially the Board did not find the applicant’s evidence credible.  On the contrary, it concluded that the applicant had fabricated his entire non‑refoulement claim to prolong his stay in Hong Kong. 

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 25 May 2018 seeking leave to apply for judicial review against the Board’s Decision.  The grounds for review stated in the Form and in his affirmation filed on the same date were summarized by the Deputy Judge at paragraphs 17‑19 of the Deputy Judge’s Decision as follows:

“ 17. The Applicant complained the Adjudicator unlawfully fettered her discretion by refusing his appeal; acted in a procedurally unfair manner; rendered unreasonable or irrational decision; failed to meet the greater care and duty owed to a self‑represented claimant.

18. The Applicant further complained he was given the appeal bundle only several days before the appeal hearing. He was unrepresented at that time and 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 during the appeal hearing. He complained the Adjudicator failed to make appropriate arrangement in relation to the service of the hearing bundle.

19.  The Applicant also accused the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.”

10.  The Deputy Judge heard the applicant’s leave application on 7 September 2018.  After the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 23‑35 of the Deputy Judge’s Decision:

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

24.  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’.[6] 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.’ [7]

25.  The Applicant mentioned he was not legally represented for the appeal.  He had been represented by the Duty Lawyer Service up to the Director’s decision dated 12 August 2016.

26.  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.[8] 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.

27.  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 he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator.  The Applicant had much exaggerated his language problem.

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

29.  According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non‑refoulement Claims Petition Scheme’[10], 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.

30.  The Applicant said the Director served the appeal bundle on him on 14 March 2018 before the Board hearing scheduled for 21 March 2018.  That was 7 calendar days (or 6 working days) prior to the Board hearing.  Thus, the bundle was served on the Applicant in time.

31.  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.

32.  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.

33.  The Applicant said he answered all the questions honestly in the Board hearing.[11] That means he knew what was asked and how to answer.  He was not confused.

34.  There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.

35.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable.  She 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.  She 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.”

Grounds for appeal

11.  The applicant appeals against the Deputy Judge’s Decision.  By way of the Notice of Appeal dated 9 May 2019, the applicant advanced the following ground:

“ the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. 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.”

12.  Apart from the mere repetition of his claim in the Notice of Appeal, the applicant did not identify any errors in the Deputy Judge’s Decision.

Discussion

13.  At the hearing of the appeal, the applicant appeared in person before us and confirmed that he had nothing to add to the written materials already lodged.

14.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.

15.  First, 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.  While in non‑refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  An appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court, Cap 4A.

18.  In light of the above, it is thus incumbent on the applicant to point out the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any errors in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which had been addressed by the Deputy Judge in his reasons.  These are no viable grounds of appeal.

19.  In his skeleton argument dated 5 July 2019, the applicant quoted some passages from ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision‑maker in the determination of a non‑refoulement claim. He also alleged that the Adjudicator acted in a procedurally unfair manner in assessing his credibility and that the court should intervene if the decision makers were Wednesbury unreasonable.  He also put forward the argument on late filing of notice of appeal before the Board under s 37ZT of the Immigration Ordinance.

20.  In our view, the authorities cited in the skeleton submissions do not assist the applicant in this appeal.  The Deputy Judge has specifically reminded himself of and applied the principle in reviewing the Board’s Decision (see in particular paragraph 35 of the Deputy Judge’s Decision).  As mentioned above, the applicant has simply failed to identify anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.

21.  The rest of the submissions which relate to the Board had been dealt with by the Deputy Judge in the Deputy Judge’s Decision with detailed reasons.  As mentioned, this court is not a venue for the applicants simply to re-argue the points put forward but failed before the Deputy Judge.  The applicant’s submissions simply raise no viable grounds of appeal.  Nor is s 37ZT of the Immigration Ordinance relevant to this appeal.

22.  In any event, we have reviewed the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors or procedural impropriety in respect of those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

23.  For the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.