RE HOSSAIN MD SAZZAD

CACV 100/2019

[2019] HKCA 662

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 100 OF 2019

(ON APPEAL FROM HCAL 706/2018)

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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.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam given on 21 February 2019 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 12 April 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration dated 24 March 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong on 7 July 2014 illegally and was arrested by the police on 8 July 2014.  He lodged a non-refoulement claim on 12 July 2014. 

3.  The applicant’s claim was based on threats from members of an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [3] to [12] of the CALL-1 Form.

4.  By a Notice of Decision dated 24 March 2017 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], 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 20 February 2018, the Board dismissed the appeal on 12 April 2018 (“Board’s Decision”).  The Board’s Decision also covered all four grounds for non-refoulement protection.

6.  At [72] of the Board’s Decision, the Board found that there are no grounds to believe that the applicant would be tortured or seriously harmed if he were returned to Bangladesh.  The Board was also satisfied at [106] that the applicant has failed to show that the Bangladeshi authorities are not able to obviate the risk by providing appropriate protection.

The deputy judge’s decision

7.  The applicant filed a Form 86 and a supporting affirmation on 23 April 2018.  The grounds of judicial review have been summarized by the learned judge at [24] and [28] of CALL-1 Form:

“24. 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 in law; 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 and/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. The Applicant said he was confused of what happened. He complained the Adjudicator failed to make appropriate arrangement.

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.”

8.  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 [32] to [50] of the CALL-1 Form:

“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. The Applicant complained the Adjudicator did not give him more time to bring in more proofs from Bangladesh to prove he had indeed been tortured. However, he confirmed to the Adjudicator that he had no additional information to add.

35. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. In the Director’s decision dated 24 March 2017, the Director screened the Applicant’s claim with respect to all the four applicable grounds including BOR2 risk.

36. The Applicant complained there were a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 24 March 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 complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

39. 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 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.

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

41. 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 those rules had been breached in the present case.

42. 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.

43. 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.

44. 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.

45. The Adjudicator had considered the issues of state protection and state acquiescence. He referred to relevant COI and concluded there was reasonable state protection. The Applicant had not complained to the Bangladesh authorities. There was no evidence the Bangladesh state knew of the alleged situation. There was no state acquiescence of any kind.

46. The Applicant failed to show it was necessary for the Adjudicator 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.

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

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

49. 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. None of the Applicant’s complaints is substantiated.

Conclusion

50. 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 for appeal

9.  In the Notice of Appeal dated 28 February 2019 the applicant advanced the following grounds of appeal:

“I am not satisfy from the order of Hong Ka Ho Arthur, Esq, I have big problem in Bangladesh I cannot return to my country.”

10.  In his skeleton submissions dated 26 April 2019, the applicant explained why it is unsafe for him to return.

11.  The applicant agreed by a letter of 28 February 2019 that the appeal could be heard by two judges.  We heard the appeal on 10 June 2019.  At the hearing, the applicant reiterated that it would be unsafe for him to return to Bangladesh until his party was back in power.  He also said that he had more documents in support of his appeal.

Discussion

12.  The only ground of appeal set out in the Notice of Appeal complains about the decision of the Board, but does not identify any error on the part of the judge.  It is therefore not a viable ground of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

13.  The bare assertion by the applicant that it is unsafe for him to return is not a valid ground of appeal.  In fact, the Board had held at [72] of the Board’s Decision that there are no grounds to believe that the applicant would be tortured or seriously harmed if he were returned to Bangladesh.  This court has repeatedly held that the Director and the Board are the primary decision makers in relation to the facts, and that an application for judicial review does not function as a further avenue of appeal, but only enables the court to intervene if procedural or legal errors on the part of the decision maker are identified. No such error has been identified here.

14.  As to the additional documents mentioned by the applicant, these were not said to have been put before the court below, and no reason was given as to why they should be permitted to be deployed on appeal.

15.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.