RE MOTAHAR HOSSEN alias TITU alias MONIR ALI alias ALI MONIR

CACV 430/2019

[2020] HKCA 333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 430 OF 2019

(ON APPEAL FROM HCAL 1717 OF 2018)

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J U D G M E N T

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge K.W. Lung (“the Deputy Judge”) as set out in the Form CALL-1 dated 5 September 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 2190.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 6 July 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 27 October 2017 (“the Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 17 September 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.  Background

3.  The applicant is a national of Bangladesh.  He entered Hong Kong in 1996 with a fake identity.  He was imprisoned in 1997 for criminal offences and deported in 1999.  He came to Hong Kong as a visitor in 21 July 2014 but overstayed.  He surrendered to the immigration department on 4 September 2014 and lodged a non-refoulement claim on 15 October 2014.  

4.  The details of the applicant’s claim and his personal background were set out in paragraphs 7-8 of the Director’s Decision, and paragraphs 30-43 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that he would be harmed or killed by his business partner or his political opponent.  The applicant claimed that he was the general secretary of the Bangladesh Nationalist Party (“BNP”).  In around 2000, the applicant started a watch business with his partner by sourcing watches from the suppliers, who provided them the goods on credit.  However, in 2012, his partner left, taking 10 million Taka from their business.  As a result, the applicant was unable to repay the suppliers’ credit.  The suppliers demanded the repayment and threatened the applicant that they would sell the applicant’s house for repayment.  Meanwhile, as a member of the BNP, the applicant assisted the BNP in the election in 2014.  Nevertheless, the political opponent Awami League (“AL”) won the election and sought to revenge the applicant by vandalizing his home.  The applicant reported the matter to the police but of no avail.  He then fled to Hong Kong for protection.    

B.  The Director’s Decision and the Board’s Decision

6.  The Director assessed the BOR3 risk[1], the persecution risk[2], the torture risk[3] and the BOR2 risk[4] in the Director’s Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

7.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 28 February 2018, 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 witness of truth.  There were inconsistences among his written claims, his non-refoulement claim form and his oral evidence at the hearing in relation to, for example, his alleged business in Bangladesh and the problems he faced with the suppliers.  Further, as to his involvement with the BNP, the Board did not accept that the applicant was a member of the BNP.  Apart from the fact that his family voted for the BNP, the evidence showing his involvement was lacking.  Thus, the Board found that the applicant was not threatened by the members of AL (paragraphs 44-62 of the Board’s Decision).  As a result, the Board found that the applicant lacked credibility and dismissed the applicant’s appeal.  

C.  The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 22 August 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review stated in his supporting affirmation filed on the same date were lengthy.  They were categorised under grounds of irrationality, procedural impropriety and unfairness.  Some of the grounds were repetitive.  They were succinctly summarized by the Deputy Judge at paragraph 12 of the Deputy Judge’s Decision as follows:

“12.  In his affirmation in support of his application dated 22 August 2018, the applicant relied upon the following grounds:

(1)  the hearing bundle was given to him shortly before the appeal hearing and he did not have sufficient time to prepare his case;

(2)  the contents of the hearing bundle were in English and he was unable to obtain interpreter service;

(3)  he was confused at the appeal hearing;

(4)  the Adjudicator was unfair and had not given greater care to a self-represented claimant;

(5)  the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a real risk of torture in future;

(6)  the Adjudicator had applied the incorrect standard of proof;

(7)  the Adjudicator had considered irrelevant facts or had failed to considered facts which were in favour of his case;

(8)  the Adjudicator had not done sufficient research in the Country of Origin Information (“COI”) and her knowledge was not updated;

(9)  the Adjudicator had relied upon hearsay information and outdated material in relation to COI;

(10)  the Adjudicator had cherry-picked and given undue weight on the irrelevant material, neglecting the materials favorable to his case;

11)  the Adjudicator had not considered USHR 2010, USFR 2010 and The International Commission of Jurists (ICJ) “Report on the ICJ Mission to Pakistan” Autumn 2011, which is favorable to his case;

(12)  the Adjudicator failed to fulfil her obligation to obtain the requisite documents for her adjudication;

(13)  the Adjudicator was wrong in state protection in his country;

(14)  BOR 2 risk was assessed without screening;

(15)  the Adjudicator failed to call for psychological and psychiatric reports on the applicant; and

(16)  the applicant was not legally represented before the Board, which was in breach of procedural fairness.”

10.  The Deputy Judge heard the applicant’s leave application on 7 March 2019.  During the hearing, an interpreter was arranged for the applicant.  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 the following reasons in paragraphs 13-22 of the Deputy Judge’s Decision:

“13.  The applicant appeared before me. He said that he did not attend the interview with the Immigration officer on 18 September 2017 because he was feeling unwell. He had a medical certificate, which he produced to the Immigration officer on 27 September 2017. But he was given a document with a list of questions. His lawyer assisted him to answer the questions, which he returned to the Immigration officer on 13 October 2017. The Director assessed his claim on the papers.

14.  However, he had told the Adjudicator that the Immigration officer had not convened another interview for him and he said that the Adjudicator was aware of that too.

15.  It seems that there was a procedural irregularity that the Immigration officer did not arrange another interview for him having been satisfied that he was unable to attend the original interview because of medical reason as supported by a medical certificate. However, this procedural irregularity was addressed and remedied by the fact that he had raised it with the Board and the Adjudicator told him that she was aware of it. She must have learned about it from the Director’s Decision, which was in the Hearing Bundle. This is ground, however, was not raised in his affirmation in support of his application.

16.  The court held in AM v Director of Immigration & Ors HCAL 69 of 2012 that the Board had the power to re-hear the case de novo.

17.  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.

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

19.  Grounds (4) to (14) are his opinions without evidence or particulars in support of them. They fail.

20.  Grounds (15) was not raised before the Board.

21.  The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] held that the applicant does not have an absolute right to free legal representation at all stages of the proceedings as he has already had the benefit of legal representation in presenting his case to the Director of Immigration. Ground (16) fails.

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

D.  Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 17 September 2019 to appeal the Deputy Judge’s Decision.  His grounds of appeal were that the Deputy Judge did not consider all the points he raised against the Board and the Director.  He stated that he had identified the errors in the oral hearing before the Deputy Judge.  He also complained that the Board did not give him any chance during the oral hearing. 

12.  Pursuant to Master Au-Yeung’s directions dated 30 October 2019, the applicant filed his skeleton submissions on 6 December 2019.  In that, he repeated his personal background and his claim.  He also claimed that he was not given the chance to say anything at the hearing before the Board.  In any event, he claimed that his interpreter did not translate his speech before the immigration officer. As a result, the Board and the Director based their conclusions on incomplete statements from the applicant.

13.  At the hearing, the applicant said he had a number of different names, and he knew that when he came to Hong Kong again he would risk to be imprisoned again. Apparently, this is to show that he was indeed subject to a real risk of personal harm if he was to remain in his home country and thus, despite knowing that he might be imprisoned again, he still came back to Hong Kong in 2014. 

E.  Discussion

14.  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.  They can be summarized as follows.

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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it 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.

16.  Second, 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.  Third, 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 with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

20.  The only ground of appeal against the Deputy Judge’s Decision is that the Deputy Judge failed to consider all the points raised by the applicant.  However, the applicant did not elaborate with any particulars in his written submissions as to which points the Deputy Judge failed to address.    This is not a viable ground of appeal and must be dismissed.

21.  In any event, as shown from the above quoted part of the Deputy Judge’s Decision, it is clear that the Deputy Judge had dealt with all the ground of judicial review raised by the applicant.  There is no merit in this ground as well.

22.  Further, in his written submissions, the applicant also complained that the Board did not give him chance to make his claim or, in any event, the interpreter was incompetent.  Again, this is not a proper ground of appeal as explained above as this appeal is not the avenue for him to regurgitate any arguments raised in relation to the Board’s Decision.

23.  Moreover, this is complaint is misconceived.  The Board held an oral hearing on 28 February 2018 during which the applicant was assisted by an interpreter.  The applicant confirmed with the Board that he had no difficulties with the quality of interpretation and nor did he provide any further documents before the Board (paragraphs 6-7 of the Board’s Decision).  As a result, the applicant was given ample opportunity to verify and clarify his claims should he wish to and we are unable to accept the applicant’s complaints in relation to the oral hearing before the Board.

24.  For the aforesaid reason, we do not accept that the Deputy Judge did not deal with all the grounds advanced before him.  In any event, we have reviewed both 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.

F.  Disposition

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