RE AWAL MOHAMMAD RABIUL

CAMP 224/2019

[2021] HKCA 165

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 224 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 1714/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.  On 15 October 2019, the applicant filed a Notice of Motion against the judgment by Kwan VP dated 8 October 2019 dismissing the summons filed by the applicant on 6 September 2019 for leave to appeal. The leave to appeal application was against the decision of DHCJ KW Lung dated 15 August 2019 refusing him leave to apply for judicial review.

2.  The reason for her ladyship’s judgment was that the applicant sought leave to appeal when none was required as the application was not out of time.  The Registrar of Civil Appeals gave directions on 6 September 2019 (the same day as the applicant’s application) which were notified to the applicant by letter dated 9 September 2019.  These directions required the application to file a notice of appeal instead of the summons he had lodged, and to do so by 24 September 2019, setting out his grounds of appeal in the notice of appeal to be lodged.  The applicant failed to do so, leading Kwan VP to dismiss his summons for the reasons explained in [4] of her judgment dated 8 October 2019.

3.  On 18 October 2019, the Registrar of Civil Appeals directed that the Notice of Motion dated 15 October 2019 be treated as the applicant’s appeal to the Court of Appeal from a single judge’s decision (viz. that of Kwan VP dated 8 October 2019) pursuant to RHC Order 59 rule 14(12).

Background

4.  The applicant is a national of Bangladesh.  He entered Hong Kong on 29 September 2015 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 4 October 2015. 

5.  The applicant’s claim was based on threats from his creditors and investors in his company.  The details of the applicant’s claim have been summarised by the judge at [3] of the CALL-1 Form.

6.  By a Notice of Decision dated 6 December 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[1], the BOR 3 risk[2], the persecution risk[3], and the torture risk[4].

7.  The applicant appealed to the Torture Claims Appeal Board.  After the hearings on 18 and 26 April 2018, the Board dismissed the appeal on 7 August 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

8.  The Board did not accept the applicant’s case and held at [59] of the Board’s Decision that there was not a real risk that the applicant would face any of the proscribed harm upon his return. 

The judge’s decision

9.  The applicant filed a Form 86 on 22 August 2018 which contained the following grounds for judicial review, summarised below:

(1)  the Board unlawfully fettered its discretion by refusing the appeal on the ground that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s Decision was unreasonable or irrational in the public law sense, or was the result of procedural errors or unfairness;

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  the Board misdirected itself on the law by considering that the applicant has to experience torture in the past in order to establish substantial grounds for believing that a risk of torture exists;

(6)  procedural impropriety/unfairness in the Board’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(7)  irrationality in the Board’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(8)  irrationality in the Board’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Indonesia;

(9)  irrationality in the Board’s failure to analyze and assess whether state protection exists and misdirected itself as to the extended meaning of state protection;

(10)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(11)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(12)  procedural impropriety/unfairness by the Board in applying the incorrect standard of proof in its decision; and

(13)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.

10.  In his affirmation in support of the leave application dated 22 August 2018, the applicant advanced the following grounds for judicial review which are summarised below:

(1)  the hearing bundle for the hearing before the Board was provided at a late stage.  Owing to the lack of translation and legal representation, the applicant could not prepare well for the hearing;

(2)  the Board had significantly relied on sources of news which were not officially recognized or were simply hearsay, causing the Board to speculate that it was safe for him to return to Bangladesh; and

(3)  the Board gave its decision on BOR 2 risk before this claim was screened by the Director.

11.  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 [11] to [20] of the CALL-1 Form:

“11.  The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. He understood the Board’s Decision, though not very clear. I explained the comments above to him and asked if he had any comments. He did not have any comment. As to the grounds above, he said that they were prepared by his friend. He did not understand those grounds himself. I pointed out to him that those grounds were inconsistent with what he said in court, he did not have anything to say.

12.  It is quite obvious that the Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim. Those grounds above are quite irrelevant. Nevertheless, I shall deal with them.

13.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018 [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

14.  Grounds (1) to (3) fail as they are inconsistent with what the applicant said before this Court.

15.  Grounds (4) to (9), (11) and (12) are his opinions without any evidence in support of them. They fail.

16.  Ground (10) fails as he did not refer those materials to the Adjudicator at the appeal hearing. They were not mentioned in the Board’s Decision. The applicant was unable to specify why those materials would support his claim.

17.  Ground (13) fails because the applicant had not even raised this issue with the Board.

18.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: ‘This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.’ Ground (14) fails.

19.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

12.  On 6 September 2019, the applicant filed a summons and an affirmation for leave to appeal against the judge’s decision.  He asked the court to consider his case but did not give any ground of appeal.  For reasons stated above, this summons was dismissed by Kwan VP on 8 October 2019.

13.  In the Notice of Motion filed on 15 October 2019, the applicant stated that:

“On 8 October 2019 CAMP Decision came out. I am very sorry for this decision. But the judges did not show any good cause to dismissed my CAMP. For this reason I am not satisfy at all. I wish I will get better result from the Court of Final Appeal, for the great interest of oppressed people I will go to the Court of Final Appeal.”

14.  In the written submission lodged on 1 November 2019 the applicant stated that:

(1)  the Board and the Director did not consider his points and that the screening system is totally wrong;

(2)  he did not understand the law in Hong Kong so he did not know how to identify an error of law.  He has ‘no complain to the High Court and CAMP’ and that his complaint was directed towards the Board and the Director; and

(3)  he is an oppressed person and he wished that the Court of Final Appeal will take a look for the total community of the oppressed.

Discussion

15.  Having considered the papers, we are satisfied that this appeal can properly be dealt with on the papers without the need for an oral hearing.

16.  It is necessary to bear in mind that this application is to be treated as an appeal against the decision of Kwan VP.  However, the only ground of appeal set out in the written submission complains of errors on the part of the Director and the Board. No error on the part of Kwan VP has been identified by the applicant. From the material before us, it is apparent that no material was put forward before Kwan VP by the applicant to demonstrate compliance with the directions that he had been given on 6 September 2019.  In these circumstances, we are entirely satisfied that the decision of Kwan VP dated 8 October 2019 was correct.

17.  Further, even if we were to consider the matters set out in the applicant’s written submissions as belatedly setting out grounds of appeal against the decision of Deputy Judge KW Lung, those matters do not complain of any error on his part, and are thus not viable grounds of appeal against his decision, either. 

18.  There is therefore no merit in the appeal and we dismiss the Notice of Motion accordingly.