RE HASAN MOHAMMAD MEHEDI

CACV 5/2022

[2022] HKCA 679

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 5 OF 2022

(ON APPEAL FROM HCAL 2726 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge KW Lung (“the Deputy Judge”)  set out in the Form CALL-1 dated 24 December 2021, by which the Deputy Judge refused his application for leave to apply for judicial review (“the Leave Decision”)  ([2021] HKCFI 3845).

2.  The intended judicial review is to challenge the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”)  dated 19 November 2018 (“the Board’s Decision”), dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 30 November 2017 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

3.  The applicant is a national of Bangladesh.  He was arrested by the Hong Kong Police for illegally remaining in Hong Kong on 13 April 2013.  Upon enquiry, he claimed that he had entered Hong Kong illegally from Mainland China on 11 April 2013.  He lodged a torture claim on 17 April 2013, which was rejected by the Director on 29 November 2013.  On 3 December 2013, he lodged a non-refoulement claim on the basis that he would be harmed or killed by members of the Awami League and that he would be arrested by the Bangladeshi authorities.  Factual details of the applicant’s claim were summarised by the Deputy Judge at [3] - [5] of the Leave Decision.

4.  By a Notice of Decision dated 30 November 2017, the Director rejected the applicant’s non-refoulement claim.  His decision covered all applicable grounds other than torture risk[1], namely BOR2 risk[2], BOR3 risk[3], and persecution risk[4]. Taking into account all relevant circumstances, the Director considered that his non-refoulement claim was unsubstantiated.

5.  On 12 December 2017, the applicant appealed against the Director’s Decision to the Board.  The applicant attended the hearing before the Board on 12 October 2018 with the assistance of an interpreter in the Bengali and English languages (“the Board’s Hearing”).  The Board dismissed his appeal on 19 November 2018.  Having assessed the evidence, the Board considered that the applicant’s claims were fabricated and was not satisfied that he faced a real chance of harm of any kind for any of the claimed reasons in Bangladesh in the reasonably foreseeable future.  The Board concluded that the applicant failed to substantiate his claim on the applicable grounds and dismissed his appeal.

The Leave Decision

6.  On 3 December 2018, the applicant filed a Form 86 and a supporting affirmation applying for leave to apply for judicial review against the Board’s Decision.  He did not provide any ground of review in his Form 86 or supporting affirmation. 

7.  By the Leave Decision, the Deputy Judge refused to grant leave to the applicant to apply for judicial review.  His reasons were set out at [12] - [18] of the Leave Decision:

“12. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13. The role of this Court is supervisory, meaning that it ensures that the Director complied with the public law requirements in coming to his Decision. The Court will not usurp his fact finding power. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13 (1)  … …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.’

15. The Board, after an extensive examination of his evidence in the hearing, has found that he has no factual basis in support of his claim.

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. There is no evidence that shows that the applicant has any realistic chance of success in his intended judicial review.

CONCLUSION

18.  I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.”

The Appeal

8.  On 4 January 2022, the applicant filed a Notice of Appeal against the Leave Decision.  In his Notice of Appeal, he contended that the bundle before the Board was not read to him before the Board’s Hearing and that although there was an interpreter during the Board’s Hearing, he had no means of finding out whether the interpreter had been interpreting his words correctly.  He further alleged that the Director should consider his case afresh and if necessary the BOR2 assessment should be done separately.  He further alleged that the Deputy Judge failed to carry out sufficient research and inquiry into the Country of Origin Information (“COI”).

9.  On 31 January 2022, the applicant also lodged written submissions in support of his present appeal.  In those submissions, he cited ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and contended that high standards of fairness were required in the determination of a torture claim.  He submitted that the Board acted in a procedurally unfair manner without properly assessing his credibility.  He referred to Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 and R v Ministry of Defence ex p Smith [1996] QB 517 for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.  He also referred to section 37ZT of the Immigration Ordinance, Cap 115, which related to the late filing of notice of appeal to the Board but failed to point out its relevance to his case.  It is also noted that his submissions were all general propositions and the applicant failed to show specifically how they were relevant to his case.

10.  We heard the appeal on 26 April 2022. A Bengali interpreter was present to provide language assistance.  During the hearing, the applicant confirmed that he had nothing further to add to his written materials.

Discussion

11.  The relevant legal principles governing appeals in non-refoulement cases are set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

12.  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’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine a decision of the Board afresh as if it is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1)  of the Rules of the High Court, Cap 4A.

13.  At the outset, the arguments raised in his Notice of Appeal and written submissions are new and not raised in the Court below.  It is well established that this Court will generally not entertain new arguments which are fact-and-evidence sensitive and have not been canvassed in the Court of First Instance and for which leave has not been sought within time: Nupur Mst v Director of Immigration, supra, at [14]; Re Gurpreet Singh [2021] HKCA 1740 at [15].  The applicant’s contentions are also general and bare assertions without any specific particulars or evidence in support.  They do not constitute proper grounds of appeal and we refuse to entertain those arguments.  The appeal must fail on this basis alone.

14.  In any event, there are no substance in the applicant’s complaints.  It has been repeatedly emphasised by the Court of Appeal that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process and that the high standard of fairness required by law does not entail interpretation service being made available to an applicant all the time as he desires: Re Zunariyah [2018] HKCA 14 at [18]; Re Zahid Abbas [2018] HKCA 15 at [11] and Re Tariq Farhan [2018] HKCA 17 at [11].  As acknowledged by the applicant, he was provided with the assistance of a Bengali interpreter during the Board’s Hearing.  There is no evidence that the applicant had raised any complaint in relation to the interpretation services provided or any difficulty in his understanding of the hearing bundle to the Board during the Board’s Hearing.  Accordingly, there is simply no substance in the applicant’s complaint as to the interpretation services provided before the Board.

15.  Further, the applicant’s complaint that the Deputy Judge failed to carry out sufficient research and inquiry into the COI is entirely misplaced.  As repeatedly emphasised by the Court, assessment of evidence, COI and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director)  as primary decision makers.  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: Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].

16.  For the reasons given above, the applicant’s appeal has no merit.  Accordingly, we dismiss the appeal.