RE ASLAM MOHAMMAD

CACV 288/2018

[2018] HKCA 843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 288OF 2018

(ON APPEAL FROM HCAL 585/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 25 June 2018 refusing leave to apply for judicial review. 

2.  Due to the non-compliance with an unless order of 7 August 2018, the hearing originally fixed for 25 October 2018 was vacated.  We now deal with this appeal on the papers based on materials already lodged.

Background

3.  The applicant is a national of Bangladesh.  He entered Hong Kong on 9 January 2013 with a permission to remain as a visitor for 14 days.  He overstayed illegally.  He surrendered to the Immigration Department on 26 March 2013, and subsequently lodged his claim for non-refoulement protection.

4.  The applicant’s claim was based on the fear that, if he returned to Bangladesh, he would be ill-treated or even killed by members of Hefazat-e-Islam and/or Jamaat-e-Islam because he was an adherent to a religious leader Mohammad Barkat, whose belief was not accepted by the members of Hafazat-e-Islam and/or Jamaat-e-Islam as being not compatible with the mainstream Muslim.  The background facts were summarized in [3] – [8] of the judgment (published as [2018] HKCFI 1306), and we do not propose to repeat them here.

5.  By two notices of decision dated 27 April 2016 and 23 June 2017 respectively, the director rejected the applicant’s non-refoulement claim on all applicable grounds.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter covered the BOR 2 risk[4].

6.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 1 August 2017, and the applicant gave evidence before the board.  After hearing the applicant, the board found the applicant’s evidence suspicious and unreliable.  It did not accept that the injuries suffered by the applicant attained a minimum level of severity.  State acquiescence, whether active or passive, was considered not to be applicable in the applicant’s case.  State protection was also available to the applicant. The board concluded that the applicant would face no genuine and substantial risk of being subjected to ill-treatment if refouled.  The board dismissed the appeal on 25 August 2017.

The judge’s decision

7.  On 5 September 2017, the applicant applied to the court for leave to apply for judicial review.  The intended application for judicial review was against the decision of the board.  In the Form 86, the applicant advanced the following grounds:

(a)   The board had unlawfully fettered its discretion by refusing the applicant’s appeal on the ground that he did not satisfy the requirement;

(b)   The board had acted in a procedurally unfair manner;

(c)   The board’s decision was unreasonable or irrational in the public law sense and was a result of procedural errors or unfairness; and

(d)   The board failed to meet the greater care and duty owed to a self-represented claimant.

8.  The applicant further contended that:

(a)   The hearing bundle for use at the hearing before the board was given to him only 6 days before the scheduled hearing and the documents contained in the bundle were in English.  As a result of these, the applicant had insufficient time to prepare for the hearing and was confused as to what was happening during the hearing;

(b)   The applicant answered all questions honestly and was aggravated by the board’s adverse finding on credibility; and

(c)   The board had relied on the source of news that was not officially recognized or hearsay.  It had also relied on some cases that were outdated considering the dramatic change in the situation.

9.  In his supporting affirmation dated 5 September 2017, the applicant repeated the matters already stated in the Form 86.

10.  The judge heard the application on 30 January 2018 and refused to grant leave to apply for judicial review on 25 June 2018.  The judge’s reasons in refusing leave to judicial review were set out in [15] – [20] of the CALL-1 form ([2018] HKCFI 1306) as follows:

“ 15. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the adjudicator’s decision to be without fault. He analysed the material, claim and evidence. I find no substance in the grounds of this application and supporting affirmation. The applicant put forward three grounds and I find them all to be without merit.

16. In the first ground, the applicant suggests that the appeal bundle was served only days 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. The decision of the TCAB states that the applicant adopted all of his previous evidence and the non-refoulement claim form which were in the appeal bundle and elected to give evidence. 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 and statements that were in the appeal bundle. Moreover, he has made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

17. In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. The adjudicator did find his evidence of his case spanning many years far-fetched. I will not interfere with the adjudicator’s evaluation of the applicant’s evidence. Judicial review is not an avenue for revisiting the assessment by the adjudicator and considering the applicant’s evidence again. In any event, the adjudicator went on to assess the claim on the basis that what he said was true. There is no merit in this ground.

18. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground. I find no merit in this ground.

19. 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.

20. 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, para 14-17.  I refuse leave to apply for judicial review.”

The appeal

11.  The applicant filed his notice of appeal on 5 July 2018.  In the notice of appeal, the applicant stated that:

“ … the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

12.  Notwithstanding that he was directed to do so, the applicant failed to lodge any skeleton submission in support of this appeal.

General Propositions

13.  Before we address the ground of appeal, we would highlight some salient points of the general propositions in determining appeal on non-refoulement cases:

(a)   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 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.

(b)   An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(c)   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 this court to examine the decision of the board afresh as if it is a fresh application for judicial review.

Discussion

14.  In the present case, the board assessed that the applicant’s evidence was suspicious and unreliable.  It also found that state protection was available to him.  As we have explained above, these findings were within the province of the board, and the court would not intervene with them unless there were public law grounds to warrant so.  The judge, after rigorous examination and anxious scrutiny, could not find any reasonably arguable basis to challenge the board’s findings.  In order to succeed on appeal, the applicant must demonstrate that the judge erred in her analysis.

15.  In our view, the applicant failed to advance any effective argument against the analysis of the judge.  As regards the matters raised in the notice of appeal, the judge had duly considered them at [18] of the CALL-1 form.  We do not see anything amiss in the analysis.

16.  Having considered the materials available before us, we agree with the judge that leave should not be granted to the applicant to apply for judicial review.

17.  We dismiss the appeal accordingly.