DELOAR HOSSAIN v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 491/2018

[2019] HKCA 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 491 OF 2018

(ON APPEAL FROM HCAL NO 982 OF 2017)

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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) :

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) on 28 September 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au Yeung on 7 November 2018, 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 12 February 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.

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2192.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh. He came to Hong Kong as a visitor on 17 August 2006 and was allowed to stay until 31 August 2006.  He did not depart and overstayed since 1 September 2006.  He was arrested by the police on 21 August 2008 and was subsequently referred to the Immigration Department for investigation.  On 27 August 2008, he lodged his non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by (i) supporters of rival political party Awami League (“AL”) as he was a member of rival political party Bangladesh Nationalist Party (“BNP”) and (ii) members of Purbo Bangla Communist Party (“PBCP”) for his refusal to pay protection money as demanded.

5.  By a Notice of Decision dated 5 September 2014, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered BOR 3 risk, torture risk, and persecution risk.  By a Notice of Further Decision dated 9 May 2017, the Director rejected his claim on BOR 2 risk.

6.  The applicant then appealed to the Torture Claims Appeal Board (“the Board”) against the decisions of the Director.  The Board dismissed the appeal on 27 October 2017 on paper.  The Board found at [55] – [61] of its decision that the applicant’s evidence was incredible and he had exaggerated his case for the purpose of his non-refoulement claim.  His suspicion that the fire that broke out in his shop was a deliberate arson was based on false assumption.  The Board further found that clashes and conflicts between supporters of BNP and AL as the two largest political parties were common in Bangladesh and the applicant was not specifically targeted during those incidents of fights when objects were thrown at him by theAL supporters.  The said experiences could not be regarded as torture or persecution under any of the applicable grounds and the Board concluded that the applicant had failed to substantiate his claim for non-refoulement protection.

7.  On 29 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  The applicant put forward the following grounds for his intended challenge :

(1)   failing to maintain high standard of fairness by not holding an oral hearing to allow the applicant an opportunity to put forward his case;

(2)   consider the appeal simply by trying to see whether he could ‘find fault with the decision of the Immigration Officer’ when the Director was in fact excused from attending the appeal hearing which showed that it is a general practice of the Board to not question or find fault with the decision of the Director; and

(3)   failing to apply the minimum standards of procedural fairness by not taking into consideration that he was not legally represented before the Board and had insufficient legal knowledge which could jeopardize his representation in the appeal process, and for failing to inform him that he had the right to complain.

THE JUDGE’S DECISION

8.  On 28 September 2018, 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 [11] – [19] for his refusal to grant leave :

“ 11. For his complaint under ground (1) of the Board not holding any oral hearing for him to put forward his case, it was clearly stated by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277, CACV 115/2013 that there is no absolute entitlement to an oral hearing, and that it is ultimately a question of fairness in the circumstances of each case, of which Cheung CJHC elaborated in paragraph 26 of his judgment :

‘ … there is no absolute right to an oral hearing. Amongst other things, the question whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision (in terms of its outcome and consequence), the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.’

   12.  In deciding that an oral hearing was not necessary to consider the applicant’s appeal, the Board already had those principles set out in ST v Betty Kwan, supra above in mind as it explained in its decision :

‘ 4. In this Board, the whole case will be considered afresh based on all the documents placed before me. I have considered the general principles and circumstances under which an oral hearing is required as set out in CACV 115/2013. There is no absolute right to an oral hearing. Whether a hearing is necessary will depend upon the subject matter and circumstances of a particular case and the nature of the decision to be made. I decided not to hold a hearing because, after a preliminary review of the whole case, I found that no worthwhile and effective representation could be made. I am satisfied that this appeal can justify be determined without a hearing.’

   13.  In his Form 86 the applicant referred to various authorities but did not elaborate how they applied to his case regarding this complaint of his, nor did he identify any further materials or representations that he would have put before the Board at an oral hearing to advance his case.  Even now in his application now before me including an oral hearing almost a year after the Board’s decision that he did not make any further or additional representation in support of his claim.

   14.   It is clear from the Director’s decision that the applicant with the assistance of legal representation did provide all his information and representation in both his TCF and SCF as well as two screening interviews before the Immigration Department with ample opportunity to fully present his claim before the Director, and that when he was later invited by the Director to submit additional facts relevant to his claim including BOR 2 risk that he did not find it necessary to do so, while in his subsequent appeal to the Board his grounds of appeal were in general in line with the basis of his claim as contained in his TCF as summarized in paragraphs 2 – 5 of the Board’s decision, of which the applicant never claimed to be incorrect or inaccurate nor found necessary to supplement either in his Form 86 or his supporting affirmation or at his oral hearing in his application now before me.  In the premises I find no useful purpose would be served by an oral hearing as found by the Board in his appeal process, and that there is no basis to support the complaint of procedural unfairness.

   15.   As for his complaint in ground (2) of the Board having erred in its approach of his appeal without the attendance of the Director, I fail to see any relevancy or rationale for involving the Director in the process of his appeal, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how that would support his claim that the Board had approached his appeal by simply to see if it could find fault with the decision of the Director.  There is simply no basis or merit in this complaint of the applicant.

   16.   For his complaint in his last ground of the Board failing to apply high standards of fairness without taking into consideration of him not being legally represented and for not informing him that he could complain, it has been held by the Court of Appeal that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

   17.   The applicant already had the benefit of legal representation in presenting his case to the Director, and given the nature of his claim which the Board was able to deal with his appeal and clearly did so as a rehearing independently of the Director’s decision, I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

   18.   In the premises and having proceeded to consider the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

   19.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

THE APPEAL

9.  The applicant filed the Notice of Appeal filed on 2 October 2018 and in his supporting affirmation filed on the same day, he set out the following grounds of appeal :

“ (1) [The Judge] was wrong in law in holding that there was no state acquiescence or involvement.

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

DISCUSSION

10.  Ground (1) is new.  It was not put forward for the applicant’s intended challenge for judicial review when applying leave before the Judge.  It has no relevance to the case because the Judge had not made any holding on state acquiescence or involvement.

11.  As for Ground (2), it is apparent from the Judge’s reasons set out in paragraph 8 above that, this allegation is without merit.  The Judge clearly explained the reasons for his decision in those paragraphs of the CALL-1 Form.

12.  In any event, we take the view that the Judge’s observations and findings are justified.  Having considered the material available before us, we cannot find any errors of law or procedures in the proceedings before the Board, nor any reasonably arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, not the court. We agree with the Judge that the leave application should be refused.

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