RE RAHMAN TALUKDER MD ATIKUR

CACV 564/2018

[2019] HKCA 356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 564 OF 2018

(ON APPEAL FROM HCAL NO 338 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 Judge”) given on 21 November 2018 refusing the applicant 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 28 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 4 November 2016 rejecting the applicant’s non‑refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 9 March 2016 and was arrested by the police on the same day.  He lodged a non‑refoulement claim on 13 March 2016. 

3.  The applicant’s claim was based on threats from a man identified as Shikdar who was the General Secretary of a political party, the Awami League, in the applicant’s area.  The basis of the applicant’s claim has been summarised by the judge at [2] to [16] of the CALL‑1 Form.

4.  By a Notice of Decision dated 4 November 2016 (“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]

5.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 4 January 2018, at which it considered the Director’s Decision, the Board dismissed the appeal on 28 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non‑refoulement protection.

6.  At [71] of the Board’s Decision, the Board found that the potential threats against the applicant did not attain a minimum level of severity and are highly unlikely to occur.  The Board was also satisfied at [74] that state protection would be available for the applicant and at [72]‑[73] that internal relocation would be viable.

The deputy judge’s decision

7.  The applicant filed an application for leave to apply for judicial review in Form 86 on 5 March 2018 which contained 9 grounds of judicial review:

(1)   the Board misdirected herself in law;

(2)   the Board failed to make sufficient inquiry;

(3)   the Board failed to consider updated or relevant COI; the Board took into account outdated cases and irrelevant information, considered information not officially recognised or simply hearsay, and cherry‑picked information;

(4)   the Board failed to evaluate and make a finding as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights;

(5)   the Board failed to properly consider the issues of state protection and state acquiescence;

(6)   the Board took into account irrelevant considerations;

(7)   the Board failed to call for psychological or psychiatric reports;

(8)   the Board applied the wrong standard of proof; and

(9)   the applicant was not afforded a fair procedure.

8.  In the affirmation in support of the application for leave dated 5 March 2018, the applicant deposed to the facts relied on for his claim for judicial review.

9.  A hearing of the applicant’s application took place in open court before the Judge on 4 July 2018.  By a decision recorded on the CALL‑1 Form dated 21 November 2018, the Judge refused to give leave for judicial review. In the CALL‑1 Form, after summarizing the facts and background of the case and the decisions of the Director and the Board, the Judge gave the following reasons for refusing leave to apply for judicial review at [41] to [55]:

“ 41. It is wrong for the Applicant to say the Director had not screened his non‑refoulement claim with respect to BOR2 risk. The Director’s decision dated 4 November 2016 was on all the four applicable grounds including BOR2 risk.

42. The Applicant complained there were failures at first instance by the assigned duty lawyer. The Applicant failed to be specific.

43. The Applicant complained about lack/insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 4 November 2016. 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.

44. 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. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling English documents.

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

46. 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.

47. The Applicant said the appeal bundle was served on him on 27 December 2017. That was 8 calendar days (or 6 working days excluding a Sunday and a public holiday) prior to the Board hearing scheduled for 4 January 2018. Thus, the bundle was served on the Applicant in time.

48. 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.

49. 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.

50. 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.

51. The Adjudicator had considered the issue of state protection. She found reasonable state protection was available to the Applicant. There was no issue of state acquiescence because the Applicant himself had not reported his own predicament to the authorities and there was no evidence the authorities had come to know about that.

52. The Applicant failed to show why psychological or psychiatric reports should be necessary in his case. He also failed to prove it was necessary for the Adjudicator to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

53. There was no evidence the Adjudicator cherry‑picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay. There was also no evidence the Adjudicator applied the wrong standard of proof or misdirected herself in law.

54. 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 of the Applicant’s case. 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. None of the Applicant’s complaints is substantiated.

Conclusion

55. 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 the review.”

Grounds of appeal

10.  In his Notice of Appeal dated 3 December 2018 the applicant referred to his affirmation filed on the same day for his grounds of appeal, which are that:

“ (1) The [Judge] was wrong in law in holding that there was no state acquiescence or involvement.

(2) The [Judge] failed to provide detailed reason in support of [his] decision.”

Discussion

11.  In relation to his first ground of appeal, in his skeleton submissions dated 11 February 2019, the applicant submitted that high standards of fairness are applicable to his case.  He also submitted that the Board erred in not conducting a rehearing and in simply assessing if the Director’s decision was faulty, and that the Board failed to consider the conditions of the applicant’s country of origin.  These criticisms of the Board’s decision are misplaced.  First, this is an appeal from the decision of the Court of First Instance not to grant leave for judicial review, not an appeal from the Board.  In any event, there is nothing to substantiate these criticisms.  Having read the Board’s decision it seems to us clear that the Board did not mistake its functions.  It conducted a detailed inquiry and gave careful consideration to the matters raised by the applicant, including the conditions of the applicant’s country of origin, namely, Bangladesh.

12.  The applicant has asserted in his first ground of appeal that the Judge erred in law in holding there was no state acquiescence or involvement, but he has failed to give any particulars for the alleged legal error committed by the Judge.  Nor are we able to detect any legal error.  No viable ground of appeal has been made out.  In any event the Board made the critical findings that the circumstances did not attain a minimum level of severity and the threats were highly unlikely to occur: [70]-[71] of the Board’s decision.  

13.  As for the second ground of appeal, the applicant simply submitted in his skeleton submissions that the decision maker is under a constitutional duty to act fairly.  The judge did give detailed reasons in the CALL‑1 Form as set out above.  This ground is without merit.  

14.  There is no merit in the appeal which will therefore be dismissed.