RE RAJU NAZMUL HASAN

CACV 365/2018

[2018] HKCA 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 365 OF 2018

(ON APPEAL FROM HCAL NO 719 OF 2017)

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JUDGMENT

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Hon Fung J (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 31 July 2018 (published as [2018] HKCFI 1725) refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  He allegedly entered Hong Kong illegally on 17 November 2012, and was arrested by the police on the same date.  He lodged a torture claim on 21 November 2012, which was rejected by the Director of Immigration (“the Director”) on 13 May 2013.  On 23 July 2013, his appeal to the Torture Claims Appeal Board (“the Board”) was also rejected. 

3.  On 24 May 2013, the applicant lodged another claim based on cruel, inhuman or degrading treatment or punishment.  The claim was taken to be a non-refoulement claim upon the commencement of the unified screening mechanism on 4 March 2014. 

4.  Due to the applicant’s failure to return a completed supplemental claim form, the applicant’s non-refoulement claim was taken to be withdrawn on 17 September 2015.  Upon the request of the applicant’s legal representative, the Director allowed the applicant’s non‑refoulement claim to be re-opened on 5 November 2015.

5.  His claim was based on the fear that, if refouled, he would be harmed or even killed by members of Awami League because of his political affiliation with their rival the Bangladesh Nationalist Party. The facts of this case were summarized by the judge in [4] to [7] of her decision, and we do not propose to repeat them here.

6.  The Director assessed the applicant’s claim on all applicable grounds (except the torture risk,[1] which had already been assessed by the Director against the applicant), and rejected it by two notices of decision dated 17 March 2016 and 30 June 2017.  The former covered the BOR 3 risk[2] and the persecution risk,[3] and the latter the BOR 2 risk.[4]

7.  The applicant lodged a petition to an adjudicator of the Non‑refoulement Claims Petition Office against the Director’s decisions.  An oral hearing was held on 10 August 2017, but the applicant refused to testify or to answer any questions put by the adjudicator.  Having considered the relevant country of origin information (“COI”) and the applicant’s evidence, the adjudicator found that the applicant’s account was untruthful.  There was no reliable evidence to substantiate the applicant’s claim.  It was also found that state protection was also available to the applicant and internal relocation was a viable option for him.  Accordingly, the adjudicator dismissed the applicant’s petition on 22 September 2017.

The judge’s decision

8.  On 4 October 2017, the applicant filed a Form 86 seeking leave to apply for judicial review against the adjudicator’s decision. In the Form 86, the applicant referred to his affirmation in support of the application for grounds for seeking relief.  In his affirmation, the applicant advanced the following grounds for the intended judicial review:

(1)   The adjudicator failed to carry out sufficient research and inquiry into the COI conditions and failed to have regard to relevant and up-to-date COI research;

(2)   The adjudicator cherry-picked COI and relied on outdated COI;

(3)   The adjudicator failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4)   The adjudicator failed to analyse state protection in Bangladesh.  The adjudicator misdirected itself on the law regarding the extended meaning of state protection;

(5)   The adjudicator took into account incorrect facts and failed to give weight to facts favourable to the applicant.  There were no particulars for this ground;

(6)   The adjudicator failed to call for psychological and psychiatric evaluation when the claim was before the Director and the adjudicator;

(7)   The adjudicator applied incorrect standard of proof.  There were no particulars for this ground;

(8)   The duty lawyer failed at the first instance to give sufficient legal representation.  There were no particulars for this ground; and

(9)   The adjudicator failed to arrange an oral hearing for the applicant.

9.  The applicant also furnished the following particulars for some of the above grounds for seeking relief:

(1)   The hearing bundle with documents all in English was provided to him just a few days before his appeal hearing before the adjudicator and therefore with insufficient time for him to properly prepare for the hearing.  The applicant was confused at the hearing;

(2)   The applicant answered all the questions with honesty and the adjudicator’s adverse finding on credibility aggravates him;

(3)   The adjudicator had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to his home country;

(4)   The adjudicator made a decision on BOR 2 risk even though this part of the claim was not screened or judged by the Director.

10.  After having an oral hearing on 7 March 2018, the judge refused to grant leave to the applicant to apply for judicial review.  The judge’s reasons in refusing leave were set out in [12] to [19] of her decision:

“12. I have considered with [rigorous] examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application. There were nine grounds but the ninth ground was struck out during the oral hearing; the applicant confirmed that there was an oral appeal hearing conducted which that ground claimed he was unfairly denied.

13. There are eight other grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

14. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (‘COI’) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did consider relevant, up‑to‑date and objective COI despite his finding the applicant was not a genuine claimant. These grounds are not arguable.

15. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint. There is no merit in this ground.

16. The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. This is misleading when the applicant steadfastly elected not to give evidence and answer questions. The adjudicator was entitled to draw an adverse inference when he was unable to assess the applicant’s credibility and clarify issues he identified in his evidence. There is no merit in this ground.

17. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 30 June 2017 and the date of the appeal hearing was 10 August 2017 with specific reference to that decision of the Director.

18. 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.

19. 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.”

The appeal

11.  On 6 August 2018, the applicant filed a notice of appeal, together with his affirmation in support.  In the notice of appeal, the applicant referred to his affirmation for the grounds of appeal.

12.  The applicant deposed in the affirmation as follows:

“(1) The Honorable Deputy High Court Judge Madam WOODCOCK was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Deputy High Court Judge Madam WOODCOCK failed to provide detailed reason in support of her decision.” (sic)

13.   In Exhibit A to the affirmation, the applicant by and large repeated the grounds set out in his affirmation in support of the application for leave to apply for judicial review.  A new ground (ground 1) that the adjudicator misdirected itself on the law when assessing the risk of torture in the future was added; and the last ground in the leave application that the applicant was denied of hearing before the adjudicator was withdrawn.

14.   The applicant lodged his skeleton submissions on 5 November 2018.  In it, the applicant averred for the first time that he was charged with a criminal offence and was convicted in absentia in Bangladesh.  He claimed that, if refouled, he would be deprived of fair trial to the contrary of articles 10 and 11 of the Hong Kong Bill of Rights.  He also submitted that the judge erred in refusing to adjourn the hearing in order to allow time for him to obtain further evidence concerning the Bangladeshi law, as well as in refusing him leave to apply for judicial review.  The applicant further submitted that high standards of fairness were required in determination of a torture claim, that the adjudicator should have approached the appeal by considering the applicant’s COI, and that the decision maker was under a common law duty to act fairly.

15.   We heard the appeal on 18 December 2018.

General principles

16.   Before we address the merits of the appeal, we would highlight the general propositions in respect of appeal in 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 (including the adjudicator).  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. 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.

(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.

(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.

Discussion

17.   We observe at the outset that the applicant’s skeleton submissions are misleading.  It was never part of the applicant’s case that he was charged with any criminal offence, let alone he was convicted in absentia.  Nor has he ever claimed that his right to trial fair would have been violated if he returned to Bangladesh.  Also, there was no record in the lower court files that he had ever applied to the judge for adjournment so as to allow him time to obtain evidence concerning the Bangladeshi law.  These submissions are outright lies, and we have no hesitation in rejecting them.

18.   In the present case, the Appellant refused to answer questions to clarify or elaborate his evidence in the documents at the invitation of the Adjudicator and there was no objective evidence to support his material assertions.  Based on its evaluation of evidence, the adjudicator rejected the applicant’s claim on the basis that the applicant’s failure to substantiate his claim.  As we have explained above, evaluation of evidence is within the province of the adjudicator, with which the court in its judicial review jurisdiction will not likely interfere.  After having rigorous examination and anxious scrutiny of the materials available before her, the judge did not find any fault in the decision of the adjudicator.

19.   In this appeal, the applicant did not put forth any viable ground to reverse the judge’s decision.  There is no basis for suggesting that the judge did not give adequate reasons.  Given the facts of this case and the findings of the adjudicator, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

20.   Plainly, the new ground regarding the misdirection of the adjudicator to assess risk in the future has no merit. Apart from it not being canvassed in the Court of First Instance, the ground is not reasonably arguable in light of the adjudicator’s adverse finding on credibility.  The rest of the arguments set out in Exhibit A were only regurgitation of the arguments advanced before, and duly rejected by, the judge.  As stated above, this course cannot avail the applicant on appeal.

21.   Having considered the materials available before us, we cannot find any ground that justifies a reversal of the judge’s decision either.  We agree with the judge that leave to apply for judicial review should be refused.

22.   For these reasons, we dismiss the appeal.