RE MD JAFOR SHEIKH

CACV 286/2019

[2019] HKCA 1117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 286 OF 2019

(ON APPEAL FROM HCAL NO 720 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 14 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 20 April 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 22 August 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.  This we now do. 

Background

3.  The applicant is a national of Bangladesh.  He left Bangladesh for mainland China on 15 February 2012.  It appears that he entered Hong Kong illegally in around August 2013 and was arrested by the police on 17 September 2016.  He lodged a non-refoulement claim on 24 October 2016. 

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 his father’s employers Selim and Shamim Osman (“the Employers”) due to a land dispute.  He claimed that Selim was a cadre in the Awami League (“AL”) and Shamim Osman was a member of the parliament whilst the applicant’s father worked as their accountant.  In 2009, the applicant’s father purchased a piece of land in the applicant’s name using both his own savings and the company’s money.  When the Employers came to know about this in April 2010, they asked the applicant’s father to either transfer the land to them or they would kill him and the applicant.  A few weeks later, the Employers, with some armed men, came to the applicant’s house and shot his father, killing him.  The applicant managed to escape and subsequently reported the matter to the police.  However, the police refused to investigate his case.  After some months of hiding, the applicant’s friend informed him that his enemies were still looking for him.  The applicant thus eventually fled to mainland China. 

The Director’s Decision and the Board’s Decision

6.  By the Director’s Decision which covered the BOR3 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 21 March 2018, 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 was not a credible witness.  It rejected the applicant’s version of events and held that the applicant fabricated these events in order to make a claim.  On this basis alone, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 25 April 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review listed in his supporting affirmation were summarized by the Deputy Judge in his decision as follows:

“24.  In his affirmation, 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; 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 resulting in a lack of or insufficient legal representation.

27.  The Applicant further 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.

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 leave application was heard before the Deputy Judge on 5 September 2018.  At the hearing, the applicant confirmed that the grounds for judicial review were as stated in the Form 86 and his supporting affirmation.  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 his decision in the following paragraphs (footnotes omitted):

“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 decision dated 22 August 2017 was in relation to all the four applicable grounds including BOR2 risk.

35. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

36. 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 22 August 2017.

37. 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.

38. The Applicant raised his language problem. In the current application, two friends helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find people to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

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

40. 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 such rules had been breached.

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 complained the Adjudicator had not considered the issues of state protection and state acquiescence. The Adjudicator did not have to consider those issues as he did not believe the Applicant’s claim. He did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk.

44. For the same reason, there was no necessity to call for psychological or psychiatric reports or 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.

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

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

47. 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

48. The Applican t’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 26 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 and Country of Origin 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.  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, 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 19 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.