RE TAREK MAHAMUD

CACV 284/2019

[2019] HKCA 1116

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 284 OF 2019

(ON APPEAL FROM HCAL NO 912 OF 2018)

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REASONS FOR JUDGMENT

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Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 18 June 2019 (“the Deputy Judge’s Decision”),[1] 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 18 May 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 9 January 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  At the conclusion hearing of the applicant’s appeal, we dismissed the appeal and indicated we would hand down our reasons for doing so in due course.  These are our reasons. 

Background

3.  The applicant is a national of Bangladesh.  He left Bangladesh for mainland China on 21 June 2014.  He entered Hong Kong illegally on 23 June 2014 and was arrested by the police on the same day.  He lodged a non-refoulement claim on 27 June 2014. 

4.  The details of the applicant’s claim and his personal background were set out in the Deputy Judge’s Decision.[2]

5.  Briefly stated, the applicant claimed that if he was to return to Bangladesh, he would be harmed or killed by members of the Awami League (“AL”).  The applicant said he joined and later became the General Secretary of the Bangladesh Jatiotabadi Chatra Dal (“JCD”) in 2003, the student wing of the Bangladesh Nationalist Party (“BNP”).  Upon his graduation in 2005, he continued to support BNP by joining the Jatiobadi Jubo Dal (“JD”) in 2006, which was the youth wing of BNP, and participated in the party’s activities. BNP was the ruling party in Bangladesh until late 2006 when BNP handed over power to an interim government.   In mid-2008, the applicant became the General Secretary of the local branch of JD, and part of his duties was to encourage people to vote in the coming election.  Some AL members, including two persons by the names Kamal and Samad, who were the President and Secretary of the youth wing of AL, threatened to kill him if he remained in Bangladesh. From 2009 to 2013, the AL members constantly assaulted and threatened him and his family.  He eventually fled the country.

The Director’s Decision and the Board’s Decision

6.  By the Director’s Decision which covered the BOR 3 risk,[3] the persecution risk,[4] the torture risk[5] and the BOR 2 risk,[6] the Director refused the applicant’s claim. 

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 6 December 2017, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the material 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’s allegations were vague and unconvincing.  Despite his claim to be the General Secretary of both JCD and JD of the BNP, he was unable to recall the political objectives of BNP or JCD’s activities and policies.  His evidence on his participation in JD was also vague and unpersuasive.  Further, the applicant was inconsistent with the alleged attack by his enemies which took place in January 2009 and whether he was harassed and threatened persistently between 2009 and 2013.  As a result, the Board only accepted that the applicant was involved as an ordinary member of the JCD and refused to accept that the AL members would still looking for him after he had been away from Bangladesh for several years.  The Board found the applicant embellished his claim and did not find him to be a truthful witness.  Accordingly, the Board dismissed his appeal. 

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 24 May 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were summarized by the Deputy Judge in his decision as follows:

“27.  The Applicant complained the Adjudicator unlawfully fettered her 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.

28.  The Applicant 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.

29.  The Applicant also complained the Adjudicator relied on outdated cases, information not officially recognised or simply hearsay.”

10.  The Deputy Judge heard the applicant’s leave application on 27 August 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 reasons for refusing leave in the following paragraphs of his decision (footnotes omitted):

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

34.  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.’

35.  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 9 January 2017.

36.  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.

37.  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.

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

39.  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.

40.  The Applicant said the Director served the appeal bundle on him on 29 November 2017 before the Board hearing scheduled for 6 December 2017. That was 7 calendar days (or 6 working days) prior to the Board hearing.  The bundle was served on the Applicant in time.

41.  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.

42.  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.

43.  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.

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

45.  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.

Conclusion

46.  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 of appeal

11.  The applicant filed a proforma Notice of Appeal dated 25 June 2019 to appeal the Deputy Judge’s Decision.  In his proforma grounds of appeal he complained (1) that he would face hardship if he is returned to his home country; (2) that the Board relied on a source of news which was not officially recognised, or hearsay, and on cases which were outdated; and (3) that the lack of credible sources of information had resulted in the Board making groundless speculations.

12.  Apart from merely repeating his claim in the Notice of Appeal, the applicant did not identify any material error or irregularity in the Deputy Judge’s Decision.

Discussion

13.  At this hearing, the applicant repeated his claim and relied on what had previously been submitted by him. 

14.  This Court in Nupur Mst v Director of Immigration [2018] HKCA 524, at paragraph 14, highlighted the general propositions for determining an appeal for non-refoulement cases.

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.  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, 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.  Secondly, 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.  Thirdly, 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’s decision, 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 procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any error in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which were properly addressed by the Deputy Judge in his reasons.  These are not viable grounds of appeal.

19.  In his proforma skeleton submissions filed on 14 August 2019, the applicant referred to passages from ST v Director of Immigration [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. 

20.  These authorities however are related to complaints directed at the Director and the Board, which had been properly addressed by the Deputy Judge in his reasons.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.  These authorities therefore do not assist the applicant in this appeal.

21.  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 error 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

22.  For the foregoing reasons, we were of the view that the applicant’s appeal was devoid of merit. Accordingly, we dismissed the appeal.