RE HOSSAIN SADDAM

CACV 407/2018

[2019] HKCA 127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 407 OF 2018

(ON APPEAL FROM HCAL NO. 756 of 2017)

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J U D G M E N T

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Hon Andrew Chan J (giving the Judgment of the Court):

The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) given on 10 August 2018 refusing him 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 29 September 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 11 December 2015 and 26 June 2017 rejecting his non-refoulement claim.

The applicant

2.  The applicant is a Bangladesh national.  He departed Bangladesh for China on 7 February 2013 and sneaked into Hong Kong on 11 May 2013.  Three days later, he was arrested by police for illegally entering and remaining in Hong Kong.  On 17 May 2013, he raised a torture claim under Part VIIC of the Immigration Ordinance (Cap 115).  On 5 July 2013, the applicant further raised a claim for non-refoulement protection on the ground of “CIDTP” (cruel, inhuman or degrading treatment or punishment).  On 6 December 2013, his torture claim was rejected by the Director and a subsequent appeal was dismissed on 24 March 2014.  Upon the commencement of the Unified Screening Mechanism[1], the applicant’s non-refoulement claim was assessed on all applicable grounds except the torture risk under Part VIIC of the Immigration Ordinance which had already been disposed of by then.

The non-refoulement claim

3.  The applicant’s background and the details of his claim were set out in [6] to [8] of the Director’s Notice of Decision dated 11 December 2015 and [3] to [21] of the Board’s decision dated 29 September 2017, and were summarized in [5] to [9] by the Judge in the Form CALL-1 dated 10 August 2018, [2018] HKCFI 1765.

4.  Briefly stated, the applicant’s claim was based on his fear that, if he were to return to Bangladesh, he would be harmed or killed by supporters of Chatra League or Awami League because he was a member of Chatra Shibir, the student wing of Jamaat-e-Islami Party, an opposition party.  The applicant also feared that he would be harmed by an individual named Rocky, who blamed him for the death of Bishwajit, Rocky’s brother.  Bishwajit was killed in the conflicts of the three political parties in late 2012.

The decisions of the Director / the Board

5.  By a Notice of Decision dated 11 December 2015, the Director rejected the applicant’s claim on the grounds of BOR 3 risk[2] and persecution risk[3].  By a Notice of Further Decision dated 26 June 2017, the Director further rejected the applicant’s claim on the ground of BOR 2 risk[4]. The applicant appealed to the Board.  A hearing was held on 7 August 2017.  By its decision dated 29 September 2017, the Board dismissed the appeal and affirmed the Director’s two decisions.

The decision of the Judge

6.  The applicant filed a Form 86 on 11 October 2017 seeking leave to judicial review the Board’s decision.  In the supporting affirmation filed on the same day, he set out his proposed grounds for judicial review, which can be conveniently summarized as follows:

(1)  The Board acted in a procedurally unfair manner in dealing with his appeal;

(2)  The appeal bundle was served on him shortly before the oral hearing and because it was in English, he could not afford to have it translated and, therefore, he arrived at the appeal hearing confused and without a full understanding of the proceedings;

(3)  The Board was unfair in doubting his credibility when he answered all of its questions honestly; and

(4)  The Board relied on COI (“Country of Origin Information”) that was not officially recognised, hearsay and out-of-date.

7.  At the applicant’s request, an oral hearing was set down for 23 March 2018 to hear his leave application.  He was, however, absent on the day of the hearing.  When being asked over the phone, the applicant told the court interpreter that he would not attend the hearing because he did not feel well.  There being no further request from the applicant, the Judge proceeded to consider his application on papers.  Having considered the applicant’s proposed grounds for judicial review, the Judge concluded that they were unarguable and refused to grant him leave to apply for judicial review.  The Judge set out her reasons in [17] to [22] of the Form CALL-1 dated 10 August 2018:

“17. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim as well as the evidence and validated her findings. The applicant’s complaints against her and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

18. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

19. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at (13) said that:

‘Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.’

This adjudicator gave full reasons for that finding; she had a rational basis to find against the credibility of the applicant. There are no proper grounds for interfering with such a finding. There is no merit in this ground.

20. The third ground is a complaint that the adjudicator relied on COI information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground. What information she did consider relevant in spite of her finding against the applicant’s credibility, was clearly relevant, up-to-date and objective. I find no merit in this ground.

21. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.”

Grounds of appeal

8.  The applicant filed the Notice of Appeal dated 21 August 2018 to appeal the Judge’s decision.  He set out the following as his grounds of appeal:

(1)  He would face hardship if he were to return to his home country. 

(2)  The Board had significantly relied on the source of news which was not officially recognized, or was simply hearsay.

(3)  The Board had relied on some cases which were out-of-date and had failed to consider the dramatic changes.  The lack of credible source of information had resulted in its making groundless speculations. 

Discussion

9.  At the hearing, the applicant confirmed that he has nothing to add to his written submission.  The present appeal is against the decision of the Judge in refusing leave to apply for judicial review.  Yet, the grounds of appeal do not point to any error in the decision of the Judge.  The applicant’s grounds of appeal contain mere repetitions of his claim and vague assertions that the Board had not properly assessed his claim. These are not proper grounds.

10.  In his written submission dated 10 October 2018, the applicant merely quoted some 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.

11.  The applicant’s major complaints are directed at the decision of the Board which had already been addressed by the Judge.  We have looked at the decisions of the Board and of the Judge 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 decision of the Board or the decision of the Judge.  

Disposition

12.  For the reasons we have given above, we conclude that there are no merits in the appeal.  Accordingly, we dismiss the appeal.