SORIP KHAN v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 30/2019

[2019] HKCA 510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 30 OF 2019

(ON APPEAL FROM HCAL NO 455 OF 2018)

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J U D G M E N T

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

INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 8 January 2019, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 8 February 2019, the applicant was directed to lodge skeleton submissions within the prescribed time (ie not less than 28 days before the hearing of appeal fixed for 30 April 2019).  The applicant, having failed to comply with the said direction, is deemed to have waived his right to have an oral hearing.  We shall proceed to consider this appeal on paper based on the materials already lodged according to the practice adopted by this Court: Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; and Re SK Sarfaraj [2018] HKCA 307.

BACKGROUIND

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 24.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh.  He first came to Hong Kong on 22 March 2005 and was permitted to stay until 28 March 2005.  He did not depart and overstayed since 29 March 2005.  He was arrested by the police on the same day and was referred to the Immigration Department for investigation.  On 6 January 2006, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by his political enemies and the Bangladeshi special police called the Rapid Action Battalion (“RAB”) as he was involved in bomb attacks of his political enemies.

5.  By a Notice of Decision dated 25 January 2017, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 2 risk, BOR 3 risk, torture risk, and persecution risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  After the hearing on 17 January 2018, the Board dismissed the appeal on 15 March 2018.  It is the applicant’s case that he was an active member of Awami League (“AL”).  Between 2002-2005, he was instructed by his uncle who held a senior position in AL and to carry out many bomb attacks against the opposition party’s rallies and processions.  He was pursued by the RAB but he managed to avoid being caught because of the political influence of his uncle.  The Board had rightly found at [21] of its decision that the applicant should be responsible for his act of bomb attacks.  He did not warrant any non-refoulement protection as he only tried to escape punishment by the Bangladeshi authority by fleeting to Hong Kong and the Hong Kong Government would not and should not harbour criminals and fugitives running away to avoid arrest for the criminal acts committed by the applicant.  There was also no evidence suggesting the applicant had been inflicted with any severe pain and suffering by anyone in Bangladesh and his claim for non-refoulement protection was dismissed under all applicable grounds.

7.  On 20 March 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision in which he put forward the following grounds for his intended challenge :

(1)  the Board had unlawfully fettered its discretion in refusing his appeal;

(2)  the Board had acted in a procedurally unfair manner in dealing with his appeal;

(3)  the Board’s decision to refuse his appeal was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness; and

(4)  the Board had failed to meet the greater care and duty owed to a self-represented claimant.

8.  In the affirmation filed on 20 March 2018, the applicant further complained of lack of language assistance.  He also contended that the Board had relied on the source of news which was not officially recognized and made groundless speculations that it was safe for him to return to his home country.

THE JUDGE’S DECISION

9.  On 8 January 2019, the Judge gave his decision refusing to grant leave to the applicant to apply for judicial review.  In the CALL-1 Form, after summarizing the background of the case, as well as the decisions of the Director and the Board, the Judge gave the following reasons at [24] – [37] for his refusal to grant leave :

“ Discussion

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

25. 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’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul that :

‘ 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.’ (CACV 219/2018 [2018] HKCA 570, para 14(1))

26.  The Applicant mentioned he did not have legal representation for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 25 January 2017.

27.  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 (CACV 284/2017 Re: Paswan Shibu Lal, para 21).  The Applicant could not show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

28.  In court, the Applicant admitted 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 he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator.  The Applicant had much exaggerated his language problem.

29.  The Applicant complained he received the appeal bundle only on or about 10 January 2018.

30.  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.

31.  The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the appeal hearing scheduled for 17 January 2018.  The bundle was served on him in time.

32.  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 and there was no evidence to show the bundle was difficult or voluminous.

33.  A few days were certainly 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 the appeal.  There was no evidence he had complained to the Adjudicator or asked for adjournment during the appeal hearing.

34.  The Applicant said he answered all the Adjudicator’s questions honestly.  That means he knew well what was happening in the appeal hearing. He was not confused.

35.  The Applicant accused the Adjudicator relied on outdated cases or information not officially recognized or simply hearsay.  There was no such evidence.

36.  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.  He 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 of the case.  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

37.  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.  The applicant filed the Notice of Appeal on 18 January 2019 in which he set out following grounds of appeal :

(1)  the Judge had wrongly exercised his decision in coming to the conclusion that the Board had not erred in its decision;

(2)  the Board wrongly decided that the applicant was not a credible witness and rejected his non-refoulement claim;

(3)  lack of language assistance and lack of clarity of the appeal bundle for the hearing before the Board; and

(4)  lack of legal representation for the appeal hearing before the Board.

DISCUSSION

11.  Ground 1 is a vague and general complaint without pinpointing any errors of law or principles of the Judge’s decision and is not a valid ground of appeal.  In any event, we are satisfied that the Judge had reviewed the Board’s decision under “rigorous examination and anxious scrutiny” and we take the view that the Board was plainly right in finding the applicant’s claim for non-refoulement protection was unsubstantiated and devoid of merit as the applicant was fleeing to Hong Kong to avoid criminal liability of his alleged act of bomb attacks against his political enemies.  Ground 1 has no prospect of success.

12.  Ground 2 is a new argument which was not advanced in the Form 86 or the applicant’s supporting affirmation for leave to apply for judicial review.  As we have said repeatedly, 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: see Re Nupur MST [2018] HKCA 524 at [14]. Ground 2 is failed.

13.  Grounds 3 and 4 were mere regurgitation of arguments which were duly rejected by the Judge at [26] to [28] of the CALL-1 Form.  The Judge had rightly pointed out that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings, see: Re Paswan Shibu Lal, CACV 284/2017 at [21].  For the applicant’s complaint of lack of language assistance, the Judge had rightly found that the applicant had much exaggerated his problem as he was in fact assisted by qualified interpreters and Duty Lawyer Service during the screening process before the Director and the Board.  Grounds 3 and 4 are devoid of merit and is doomed to fail.

14.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.