RE ISLAM MD NAZRUL

CACV 525/2018

[2019] HKCA 245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 525 OF 2018

(ON APPEAL FROM HCAL NO 212 of 2018)

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JUDGMENT

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Hon M Poon J (giving the Judgment of the Court):

The appeal

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) given on 5 October 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office (“the Board”) dated 5 February 2018 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 6 September 2017 rejecting his non‑refoulement claim.

2.  The applicant is a Bangladeshi national.  He departed Bangladesh for China on 19 July 2015 and from there he sneaked into Hong Kong by boat.  On 23 July 2015, he was arrested by police for illegally entering and remaining in Hong Kong.  He raised a non‑refoulement claim on 25 July 2015 based on his fear that if he were to return to Bangladesh, he would be harmed or even killed by supporters of a rival political party, the Awami League.

3.  The details of the applicant’s claim were set out in [5] to [7] of the Director’s Notice of Decision dated 6 September 2017, and in [1] to [3] and [24] to [39] of the Board’s decision dated 5 February 2018, and were summarized in [1] to [15] by the Judge in the Form CALL-1 dated 5 October 2018.

4.  Briefly stated, the applicant claimed that he was a member of the Bangladesh Nationalist Party (“BNP”).  On 28 March 2015, after his refusal to release two documents given to him by his cousin containing confidential details of members of a political organization allied to the BNP, he was attacked and his shop was burnt down by people from the rival party Awami League.  He reported the incident to the local police, but no action was taken to investigate the incident.  In May 2015, he went to India and Nepal but could not sustain a living.  In July, he departed Bangladesh for China and eventually came to Hong Kong.

5.  By a Notice of Decision dated 6 September 2017, the Director rejected the applicant’s claim on all applicable grounds namely, torture risk^[1], persecution risk^[2], BOR 3 risk^[3] and BOR 2 risk^[4].  The applicant appealed to the Board.  A hearing was held on 21 December 2017.  By its decision dated 5 February 2018, the Board dismissed the appeal and affirmed the Director’s decision.

6.  The applicant filed a Form 86 on 12 February 2018 seeking leave to judicially review the Board’s decision.  In the supporting affirmation filed on the same day, he set out his proposed grounds for judicial review, which the Judge summarized in the Form CALL‑1 dated 5 October 2018, [2018] HKCFI 2136 as follows:

“Grounds of judicial review

27.   In his affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self‑represented claimant.

28.   The Applicant accused the Adjudicator failed to make sufficient inquiry; failed to consider updated or relevant COI; took into account outdated cases/irrelevant information; relied on information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; misdirected in law; applied the wrong standard of proof; rendered unreasonable decisions.

29.   The Applicant mentioned he was not given sufficient legal representation.  He also complained he was given the appeal bundle only a few days before the Board hearing.  As such, he did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation.  The Applicant said he was confused then.  He complained the Adjudicator failed to make appropriate arrangement.

30.   Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on the BOR2 risk issue without screening.”

7.  At the applicant’s request, an oral hearing was held on 29 June 2018 to hear the leave application.  The Judge, having considered the applicant’s proposed grounds for judicial review, concluded that they were not reasonably arguable and had no realistic prospect of success. Accordingly, the Judge refused to grant leave to apply for judicial review and gave reasons in [37] to [50] of the Form CALL‑1:

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

38. 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.”.

39. It is wrong for the Applicant to say the Director had not screened his application with respect to BOR2 risk. The Director had considered the Applicant’s claim without respect to all the four applicable grounds in his single decision dated 6 September 2017.

40. The Applicant complained that he received the appeal bundle only a few days before the Board hearing scheduled for 21 December 2017.

41. 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.

42. The Director in his letter dated 29 June 2018 confirmed that the Applicant received the appeal bundle on 14 December 2017. That was 7 calendar days (or 6 working days) prior to the hearing. Thus, the bundle was served on the Applicant in time.

43. 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 suggest the bundle was voluminous or difficult.

44. 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 that he had so complained to the Adjudicator or asked for adjournment during the appeal hearing.

45. The Applicant said in his affirmation that he answered all the questions honestly. That would mean he knew well what was being asked and answered at will. He was not confused.

46. In court, the Applicant admitted he had a friend to prepare Form 86 and the affirmation for him. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. I am sure that was the case at all material times. The Applicant had much exaggerated his problem of getting interpretation/translation assistance and handling documents.

47. the Applicant mentioned he was not legally represented for appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director’s decision dated 6 September 2017. There was no evidence to show he had re‑applied for legal assistance from the Duty Lawyer Service afterwards. The Applicant also failed to show this court how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process. 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.

48. The Applicant accused the Adjudicator of failing to evaluate and make a finding as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights. The Adjudicator found the Applicant’s claim incredible. In light of such finding, it was not necessary for the Adjudicator to go on to discuss issues such as human rights violation, state acquiescence, state protection, internal relocation and so on.

49. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that and the Applicant also failed to point out the specifics.

50. There are other vague complaints raised by the Applicant.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  In my judgement, 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. 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 and applied the law correctly.  He considered the Applicant’s case carefully.  The Adjudicator had achieved the high standards of fairness required of the Applicant’s non‑refoulement claim.  None of the Applicant’s complaints is substantiated.”

Grounds of appeal

8.  The applicant filed a Notice of Appeal dated 19 October 2018 to appeal the Judge’s decision.  In the supporting affirmation he stated the following two grounds of appeal:

(1)   The Judge was wrong in law in holding that there was no state acquiescence or involvement; and

(2)   The Judge failed to provide detailed reason in support of her [sic] decision.

9.  One of the documents enclosed in Exhibit A to the affirmation is his affirmation in support of his application for leave to apply for judicial review.

10.  The applicant put in a written submission dated 10 January 2019.  He complained that the Board did not exercise high standard of fairness and should have considered the country of origin’s conditions.

11.  We heard the appeal on 25 February 2019. At the appeal, the applicant appeared in person and had nothing to add to his grounds of appeal and his written submission.

12.  We are of the view that the first ground of appeal is misconceived.  The Judge did not make any finding on the issue of state acquiescence or involvement since the Board has found the applicant’s claim incredible.  The second ground is also misplaced.  As noted by the Judge, the grounds for judicial review put forward by applicant were in vague terms and lacking in specifics.  The Judge, having reviewed the decision of the Board under “rigorous examination and anxious scrutiny”, gave detail reasons for dismissing the leave application at [37]‑[50] of the Form CALL‑1.  The judge has clearly given sufficient reasons after considering all the available material.

13.  The affirmation filed in support of the Form 86 and the written submission dated 30 January 2019 are both directed at the Board’s decision and have no bearing on the outcome of the present appeal.

14.  There is no merit in the appeal and for these reasons, we dismiss the appeal accordingly.