RE ALAM KHORSED

CACV 119/2019

[2019] HKCA 797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 119 OF 2019

(ON APPEAL FROM HCAL NO. 759 of 2018)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam on 7 March 2019 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  According to him, he departed Bangladesh for China in February 2016 and later entered Hong Kong illegally. He was arrested by the police on 14 February 2016.  He lodged a claim for non-refoulement protection by making written representations on 13 and 14 March 2016.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or even killed by a local leader of Awami League because the applicant refused to join them.  The applicant claimed that he was a supporter of the rival political party the Bangladesh Nationalist Party (“BNP”).  The background facts of this case were summarized by the judge in [1] – [13] of the Form CALL-1 ([2019] HKCFI 537).

4.  By a notice of decision dated 29 November 2016, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds and determined the claim against the applicant.  The decision covered the risk of violation of the absolute and non-derogable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk^[1] and the BOR 3 risk^[2]), the persecution risk^[3], and the torture risk^[4].

5.  The applicant lodged an appeal / petition to the Torture Claims Appeal Board / an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 26 February 2018, and the applicant elected to testify at the hearing.  Having considered the applicant’s case, the Board was not satisfied that the applicant was involved in the BNP.  Nor was the Board accepted that the applicant would face a substantial risk of being ill-treated if refouled because his family continued to reside at the same address and because he was able to leave and re-enter Bangladesh through the legal channels without encountering any problem.  By a decision given on 19 April 2018, the Board dismissed the applicant’s appeal / petition.

The judge’s decision

6.  The applicant filed his Form 86 on 2 May 2018, seeking leave to apply for judicial review against the Board’s decision.  The grounds for seeking relief as stated in the Form 86 were summarized by the judge at [25] – [28] of the Form CALL-1.

7.  In support of the said application, the applicant filed an affirmation on 2 May 2018 setting out the factual background of his case.

8.  Upon the request of the applicant, an oral hearing was held on 8 August 2018.

9.  As mentioned earlier, the judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [35] – [50] of the Form CALL-1 as follows:  

“Discussion

35. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

36. 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.’

37. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director screened the Applicant’s claim with respect to all the four applicable grounds including BOR2 risk in his decision dated 29 November 2016.

38. The Applicant had been represented by the Duty Lawyer Service up to the Director's decision dated 29 November 2016. The Applicant complained there were failures by the assigned duty lawyer. However, he failed to specify what the failures were.

39. The Applicant complained there were a lack of and / or insufficient legal representation. 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.

40. 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, the Applicant 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.

41. The Applicant complained he received the appeal bundle only on 15 February 2018 before the Board hearing scheduled for 26 February 2018.

42. 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.

43. The Applicant received the appeal bundle 11 calendar days (or 6 working days after excluding 2 Sundays and 3 Lunar New Year holidays) before the Board hearing scheduled for 26 February 2018. The bundle was served on the Applicant in time.

44. 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.

45. 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.

46. The Adjudicator had considered the issues of state protection and state acquiescence. She did not accept the Bangladesh state would consent or acquiesce or fail to provide protection. The Adjudicator’s findings were not Wednesbury unreasonable. In any event, those were not real issues as the Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. For the same reason, there was no necessity 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 herself in law or adopted 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 her finding, conclusion and decision which were not Wednesbury unreasonable. She 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. She 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

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.”

The appeal

10.  On 12 March 2019, the applicant filed a notice of appeal.  In it, the applicant stated the followings:

“Hong Kong Bill of Right (BOR 3 risk) is not follow. I request to consider my claim would check properly and quash all previous order and decision” (sic)

11.  The applicant lodged his written submission on 27 May 2019.  In it, the applicant asserted that he could not return to Bangladesh because he would be harmed by his enemies.  He then referred to the recent political situation in Bangladesh.  He also mentioned the late delivery of hearing bundle and his complaint to the Board about the interpretation service.  Finally, he expressed his dissatisfaction of the Director’s and the Board’s conclusion that he failed to substantiate a genuine risk of harm that he would face if he returned to Bangladesh.

12.  By a letter dated 12 March 2019, the applicant gave consent that this appeal might be dealt with by a 2-judge court.

13.  We proceeded to deal with the applicant’s appeal on 15 July 2019 as he failed to turn up for the hearing notwithstanding that notice of hearing was duly given.

General principles

14.  Before we address the merits of this appeal, we would highlight the general propositions that this court has adopted in determining an appeal for non-refoulement cases.

(1)   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;

(2)   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 or for running arguments which could and should have been raised but not raised before 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;

(3)   It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new argument, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time;

(4)   Further, due to the difference in the role of the court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition; and

(5)   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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

15.  In the present case, the Board rejected the applicant’s claim because it was not satisfied that he would face a genuine and substantial risk of being subjected to ill-treatment if refouled.  As the judge correctly pointed out in [36] of the Form CALL-1, the evaluation of the risk of harm is within the province of the Board.  The court will not interfere with the findings of the Board unless they are reversible on the public law grounds.  After rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

16.  What was stated in the notice of appeal was an invitation to this court to reassess the applicant’s claim afresh.  As explained above, this is not a permissible course on appeal.

17.  In [41] – [45] of the Form CALL-1, the judge gave a detailed reason in respect of the applicant complaint about the late delivery of hearing bundle.  We cannot find anything amiss in the judge’s analysis.

18.  The applicant has never complained about the interpretation service at the oral hearing before the Board.  As explained above, this court will not entertain any new arguments that are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.  In any event, the applicant provided no particulars regarding this complaint, and there is no evidential basis for us to accept it.

19.  In this appeal, the applicant failed to pinpoint any viable ground that could reverse the decision of the judge.  Having considered the materials available before us, we cannot find any of such ground either.  In our view, the judge’s observations are fully justified.  We agree that leave to apply for judicial review should be refused.

20.  For these reasons, we dismiss the appeal.