RE HOSSAIN ALMGIR

CACV 298/2019

[2019] HKCA 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2019

(ON APPEAL FROM HCAL 878 OF 2018)

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R E A S O N S   F O R   J U D G M E N T

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Hon Au JA (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 18 June 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 1412, refusing leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 9 May 2018 (“the Board’s Decision”) and the decisions of the Director of Immigration (“the Director”) respectively dated 14 September 2015 (“the Director’s First Decision”) and 12 October 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

2.  At the end of the hearing on 8 October 2019, we dismissed the appeal and indicated that we would hand down our reasons.  This is what we do now.

Background

3.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 19 February 2014 and was arrested by the police on 26 February 2014.  He lodged a non-refoulement claim on 2 March 2014.

4.  The details of the applicant’s claim and his personal background were set out in paragraph 5 - 6 of the Director’s First Decision, and paragraphs 4 - 37 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 Azizul, Karim and their fellows of Awami League (“AL”) due to his refusal to cease working for Bangladesh Jamaat-e-Islami party (“BJIP”).  The applicant said he joined the BJIP in 2011 as an ordinary member.  Although he did not hold any official post, he was an active member for the BJIP.  In early July 2011, Azizul and his fellows, 10 - 12 men from the AL, demanded him to stop working for the BJIP but the applicant refused.  In August 2011, the applicant was assaulted by 12 unknown people from AL.  He reported the assault to the police but of no avail.  In early January 2012, the applicant’s shop was vandalised by Karim and other AL members.  The applicant then fled to other areas of Bangladesh and eventually to Hong Kong.

The Director’s Decisions and the Board’s Decision

6.  By the Director’s First Decision which covered the BOR 3 risk^[1], the persecution risk^[2], the torture risk^[3] and the Director’s Second Decision which assessed the BOR 2 risk^[4], the Director decided against the applicant’s claim on all those applicable grounds.

7.  The applicant appealed the Director’s Decisions to the Board.  The appeal was fixed to be heard on 5 September 2016 but the applicant was absent.  In the end, the appeal was heard on 13 October 2016, 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 found that the applicant was not a genuine seeker for non-refoulement protection.  It found that the applicant fled out of his village to avoid being caught by the police but not to avoid the risks or harms to be imposed by the AL members (paragraphs 25 - 37 of the Board’s Decision).  In any event, the applicant was able to relocate to other areas of Bangladesh and the AL members would not waste their resources to locate him.  Thus, the level of risk to the applicant was low and the feared ill-treatment was unlikely to materialize (paragraphs 38 ‑ 47 of the Board’s Decision).  Further, the Board held that state protection and internal relocation were available to the application (paragraphs 48 - 54 of the Board’s Decision).

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 21 May 2018 seeking leave to apply for judicial review against the Board’s Decision and named the Director as an interested party therein.  The grounds of review were summarized by the Deputy Judge at paragraphs 24 - 28 of the Deputy Judge’s Decision:

“24. 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.

25. The Applicant accused the Adjudicator misdirected himself in law; 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.

26. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of or insufficient legal representation.

27. The Applicant also complained he was given the appeal bundle only a few days before the Board hearing. As such, he could not well prepare for the appeal due to language problem and lack of legal representation.

28. 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.”

10.  The Deputy Judge heard the applicant’s leave application on 27 August 2018.  At the hearing, the applicant confirmed that the grounds for judicial review were as stated in Form 86 and his supporting affirmation, and had nothing to add.  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 32 ‑ 51 of the Deputy Judge’s Decision:

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

33.  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.’

34.  It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 12 October 2017 was on BOR2 risk.

35.  The Applicant complained the Director and the Adjudicator did not accept the documents he had submitted.

36.  The Applicant submitted to the Director two documents with his written signification dated 29 May 2017 and 3 October 2017. One was a First Information Report from the Bangladesh police containing a murder complaint. The complaint was filed by the wife of the murdered man against the Applicant and some JIP members. The other document was a declaration by Mr Ruhul (President of JIP in the Lakshmipur District). Mr. Ruhul said the Applicant was an active JIP member. He did not believe the Applicant was involved in the murder. He said the Applicant would be killed by the AL people if he went back to Bangladesh. Mr. Ruhul even suggested the Applicant should not return to Bangladesh within four years from the date of his declaration, which was made on 23 July 2015.

37.  The Director did not find the two documents convincing. In paragraphs 6-7 of his further decision dated 12 October 2017, the Director gave full reasons for not relying on those documents. The Adjudicator agreed with the Director’s analysis. The Adjudicator did not find the two documents reliable. His conclusion was not Wednesbury unreasonable.

38.  The Applicant complained there were failures by the assigned duty lawyer at first instance. He failed to provide particulars in this regard.

39.  The Applicant complained there was a lack of or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 14 September 2015.

40.  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.

41.  The Applicant raised his language problem. In the current application, Form 86 and the Applicant’s affirmation were prepared in English. 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.

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

43.  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 rule had been breached.

44.  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.

45.  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.

46.  The Adjudicator had considered the issues of state protection and state acquiescence. He had proper basis to conclude there was no state acquiescence. He had also studied relevant COI to conclude reasonable state protection was available to the Applicant.

47.  The Applicant failed to show there was any necessity to call for psychological or psychiatric reports. He also failed to show there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

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

49.  There was no evidence the Adjudicator misdirected himself in law or applied the wrong standard of proof.

50.  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

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

Grounds of appeal

11.  The applicant filed the Notice of Appeal dated 2 July 2019 to appeal the Deputy Judge’s Decision.  He advanced his grounds of appeal as follows:

“Honourable Justice order is not correct. I did not get justice. For getting justice I came to appeal.” [sic]

12.  On 16 July 2019, the applicant filed a supplemental Notice of Appeal, in which he merely repeated his claim and further stated the Director was wrong in screening his claim because the Director failed to properly investigate what happened in Bangladesh and the Board only followed the Director’s Decisions.  Further, he argued that since the screening system was wrong, no officer could make the right decision.  He also complained about the lack of language and legal assistance and that the Deputy Judge did not assist him in finding the legal errors of the Board.

13.  On 9 September 2019, the applicant filed his written submission pursuant to the directions of Master Au‑Yeung on 16 July 2019.  Effectively, he argued that he could not get any help from lawyers, that the system of screening was wrong and that the Adjudicator was not neutral.

14.  At the hearing, the applicant further confirmed that, other than what had already been stated in the documents filed with the court, including the Notice of Appeal and the written submission, he had nothing to add in relation to this appeal.

Discussion

15.  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.

16.  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 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.

17.  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.

18.  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.

19.  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, the applicant merely stated that the Deputy Judge failed to assist him in finding the errors in the Board’s Decision.

20.  In our view, the grounds in the applicant’s Notice of Appeal and supplemental Notice of Appeal are not viable grounds.

21.  First of all, the Deputy Judge had examined the applicant’s complaints against the Board in relation to the lack of language and legal assistances at paragraphs 38 - 41 of the Deputy Judge’s Decision.  He had concluded that both the Board and the Director, in achieving the standard of “high standards of fairness”, made no errors of law or fact.  The applicant had failed to identify errors in the Deputy Judge’s Decision.

22.  Secondly, the rest of the grounds advanced are repetitions of the complaints made against the Board’s Decision, which have been properly addressed by the Deputy Judge in his reasons.  They do not identify with any particularities any purported errors in the Deputy Judge’s Decision.  These are no viable grounds of appeal.

23.  Thirdly, the complaints that the screening system was wrong and that the Adjudicator was not neutral were not even advanced before the Deputy Judge and thus cannot be relied upon to demonstrate any errors of the Deputy Judge: see Re Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].  Further, these complaints are simply general assertions and not supported by any or any particular basis.  They are clearly devoid of any merits.

24.  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 of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

Disposition

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