RE KHALILUR RAHMAN

CACV 307/2018

[2018] HKCA 765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 307 OF 2018

(ON APPEAL FROM HCAL 702/2017)

___________________________

___________________________

___________________

J U D G M E N T

___________________

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

1.  This is an appeal against the decision of Campbell-Moffat J on 6 July 2018 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Bangladesh.  He first came to Hong Kong on 15 April 2006 and was permitted to remain as a visitor until 29 April 2006.  He did not leave Hong Kong despite the expiry of his permission to remain and overstayed illegally. He was arrested by the police on 26 January 2007 and subsequently lodged his torture claim on 31 January 2007.  On 8 March 2011, the Director of Immigration rejected his torture claim.  His appeal against the director’s rejection was dismissed on 7 April 2011.  He was deported back to Bangladesh on 20 May 2011.

3.  He came to Hong Kong illegally on 12 December 2015 and was arrested by the police on 20 December 2015.  He raised his claim for non-refoulement protection on all applicable grounds except the torture risk[1] on 26 December 2015.  His claim was based on the fear that, if he returned to Bangladesh, he would be harmed by some members of Awami League (“AL”) because he witnessed an aftermath of a murder committed by three people who were closely connected to AL in August 2001.  After he was deported back to Bangladesh, the applicant claimed that such AL members set fire upon his house in 2011. Further, he was assaulted by them in 2014 sustaining injuries resulted in his hospitalization.  In 2015, an arrest warrant was issued against him in relation to the bombing of a vehicle. He said he had been framed up by the AL members in causing such warrant to be issued.    

4.  By two notices of decision dated 29 June 2016 and 14 September 2017, the director rejected the applicant’s non-refoulement claim.  The former covered the BOR 3 risk[2] and the persecution risk[3], and the latter the BOR 2 risk[4].

5.  The applicant petitioned to an adjudicator of the Non-refoulement Claims Petition Office against the director’s decisions.  An oral hearing was held on 29 May 2017 and the applicant confirmed under oath the matters stated in the supplemental claim form and the interview records.  After considering the case, the adjudicator accepted that the applicant might have witnessed the murder in 2001.  He however rejected the suggestion that those AL members were still pursuing the applicant after 16 years.  Furthermore, after studying the applicant’s evidence (including medical records of the hospital), the adjudicator did not accept that the applicant had been subject to ill-treatments reaching the minimum level of severity.  In terms of the alleged false charge, the adjudicator did not find credible evidence on the charge being based on a framing up.  The adjudicator found the applicant to be a fugitive from justice.  He also rejected the applicant’s assertion that those AL members had the ability to locate him anywhere in Bangladesh.  The adjudicator was satisfied that internal relocation was a viable alternative for the applicant if he returned to Bangladesh.  The petition was dismissed on 28 September 2017.

The judge’s decision

6.  On 3 October 2017, the applicant applied to the court for leave to apply for judicial review.  In the Form 86, the proposed respondent was named as “The Petition Team (Security Bureau)” (sic), and the intended applicant for judicial review was against “The Petition Team (Security Bureau) taken decision on my case at 28 September 2017” (sic).  No ground for seeking relief was contained in the Form 86.  The applicant deposed in his supporting affirmation dated 3 October 2017 that:

“ I like to tell truly my situation that I have life threaten in my country. I gave my supoting document all [illegible] my [illegible] but petition team security bureau reject my case without any reason. I am not satisfied in this wrong decision. I had hospitatized for treatment in my country and save my life from my enemeys too. I need to stay in hong kong for save my life. Therefore I request to take justice to protect my life. I am ad my document to proof my incident. I submit now document with this affirmation …” (sic)

7.  The following documents were exhibited to the supporting affirmation:

(a)  The cover letter of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 28 September 2017 informing the applicant of the adjudicator’s decision;

(b)  An English translation of a discharge certificate issued under Comilla Popular Hospital;

(c)  An English translation of the arrest warrant against the applicant;

(d)  A complaint letter in English to the Bangladeshi police accusing the applicant to be connected with the bombing incident; and

(e)  The original discharge certificate (2 pages).

8.  As the applicant did not request for an oral hearing, the judge proceeded with the application on the papers.  After setting out the factual background of the case and giving due consideration to the decisions of the director and the adjudicator, the judge refused to grant leave to the applicant to apply for judicial review. The reasons for refusing leave were set out in [12] – [14] of the CALL-1 Form of 6 July 2018, [2018] HKCFI 1216, as follows:

“ 12. There were no grounds of review. In his Affirmation dated 3 October 2017, the Applicant maintains that he is not happy with the Decision. He had re-submitted the medical documentation upon which he has previously relied and asks for a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness but I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

13. Despite the fact that the Applicant failed to submit any grounds of review, I have considered the papers, grounds and submissions carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the Applicant, the Director and Adjudicator engaged in a joint endeavour, on more than one occasion, with the Applicant and considered all relevant criteria; gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable in all the circumstances of the case.

14. In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.”

The appeal

9.  On 6 July 2018, the applicant filed a notice of appeal against the judge’s decision.  The applicant stated the followings in the notice of appeal:

“ I would like to reject and review the decision made by the immigration department on my u.s.m. case and the disregard my danger situation in my country if I go my life become [illegible] and they never gave me the time to take my supporting document too.” (sic)

10.  The applicant also lodged his written submissions on 21 August 2018.  In the written submissions, the applicant reiterated his dissatisfaction with the decision of the director in rejecting his non-refoulement claim and asked the court to reconsider his case.  The applicant also attached the following documents to his written submissions:

(a)  An incomplete statement (in English) written by a professor of the Bodiul Alam College reporting the murder incident to the police;

(b)  An incomplete 1-page narrative account of the applicant stating that he was in fear because he witnessed the aftermath of the murder;

(c)  2-page discharge certificate, which was identical to the one mentioned in [7(e)] above;

(d)  1-page document which, based on the interpretation of Bengali interpreter and confirmed by the applicant at the hearing, is a complaint to the police regarding his involvement in the bombing incident;

(e)  The original arrest warrant against the applicant;

(f)  The English translation of the discharge certificate, which was identical to the one mentioned [7(b) above]; and

(g)  2 letters written by the applicant’s wife reporting incidents of alleged attacks by AL members on her and her mother-in-law, the latest attack alleged to have happened on 2 September 2017.

11.  We heard the appeal on 25 October 2018.

General propositions

12.  Before we consider the merits of this appeal, we would reiterate the following general propositions regarding an appeal on non-refoulement cases (see, Re Nupur Mst [2018] HKCA 524 at [14]; Re Morol Rana [2018] HKCA 617 at [13]; and Re Shrestha Mahesh [2018] HKCA 619 at [14]):

(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)  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.

(d)  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.

(e)  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

13.  Items (a) and (g) described at [10] above are new evidence.  We do not accept that they are admissible on appeal.  First, the applicant gave no explanation as to why he could not obtain the evidence for use at the hearing before the judge. 

14.  Second, whilst the letter from the wife partly referred to event taking place after the hearing before the Adjudicator, we are not satisfied that the evidence meets the threshold in Section 37ZO(2) of the Immigration Ordinance[5].

15.  Further, in light of the adjudicator’s finding that internal relocation was a viable option for the applicant, the incident described in the letter of the wife, even assuming that it had actually happened, could not have an important influence on the outcome of the case.  Accordingly, the applicant fails to satisfy the requirements in Ladd v Marshall. 

16.  There is no basis to challenge the judge’s (and the adjudicator’s) decision on the ground that the applicant was not given an opportunity to obtain further documents in support. The applicant had indicated at the hearing before the adjudicator that he had no additional evidence that he wished to give: see [35] of the adjudicator’s decision.  He had the full opportunity to, and did in fact place evidence for the consideration of the judge.  This ground cannot take the applicant any further.

17.  The adjudicator had already given due consideration to the murder in 2001, the hospital records and the arrest warrant: see [45] to [50] of his decision.  The assessment of risk of harm in light of the evidence is primarily a matter for the adjudicator. We cannot find anything amiss in that assessment. 

18.  In substance, the applicant tried to invite the court to undertake the assessment as if it were a primary decision maker.  As we have explained, this is not a permissible course for the applicant to take in the intended application for judicial review.  The judge is correct in refusing leave for him to apply for judicial review. 

19.  For these reasons, we dismiss the appeal.