RE MD ZAHIDUR RAHMAN MANIK

CACV 314/2018

[2018] HKCA 766

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 314 OF 2018

(ON APPEAL FROM HCAL NO 691/2017)

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REASONS FOR JUDGMENT

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

1.  The applicant was an unsuccessful claimant for non-refoulement protection.  His appeal was dismissed by the Torture Claims Appeal Board. He intended to challenge the Board’s decision by bringing a judicial review. By her decision dated 29 June 2018, Campbell-Moffat J refused to grant leave for him to do so: [2018] HKCFI 1032.  He now appeals to this Court against the judge’s decision. 

2.  By a letter dated 18 July 2018, the applicant consented to this appeal being heard by a two-judge court.

Background

3.  The applicant was a national of Bangladesh.  According to him, he entered Hong Kong illegally on 8 January 2007.  He was arrested by the police on 30 December 2007.  He lodged his claim for non-refoulement protection on 28 August 2008.  Upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014, the applicant’s torture claim was taken to be a non-refoulement claim and it was assessed under the USM.

4.  By two notices of decision dated 17 February 2016 and 3 February 2017, the Director of Immigration determined the applicant’s claim against him.  The former decision covered the BOR 3 risk ^[1], the persecution risk ^[2], and the torture risk [3], whereas the latter covered the BOR 2 risk [4].

5.  The applicant appealed to the Appeal Board.  An oral hearing was held on 7 April 2017 and the applicant was legally represented.  The Board dismissed the appeal on 6 September 2017.

The judge’s decision

6.  On 27 September 2017, the applicant applied to the court for leave to apply for judicial review. The Form 86 of the applicant contained no grounds for seeking reliefs.  In his supporting affirmation dated 27 September 2017, the applicant set out his arguments in an Exhibit C.  Apart from reiterating his predicament and his case as presented before the Board, he saidthat the real situation in Bangladesh was different from what appears in online and newspaper information.  He said he could not produce the evidence to the standard as expected by the Board to substantiate his case.

7.  After considering the background fact of the case and the decisions of the director and the Board, the judge refused to grant leave for the applicant to apply for judicial review.  Her reasons in refusing leave were set out in [12] – [13] of the CALL-1 form as follows:

“ 12. I have considered the papers, grounds and submissions carefully. I have not taken into account the comments made by the Adjudicator as to his view of the Applicant’s credibility in order to ensure that my approach to the papers is completely unbiased. 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 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.

13. 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

8.  On 13 July 2018, the applicant filed a notice of appeal against thejudge’s decision.  In support of the appeal, he also lodged written submissions dated 2 October 2018.

9.  The notice of appeal and the submissions of 2 October 2018 raised many grounds which had not been canvassed in the papers placed beforethe Judge including Exhibit C in the supporting affirmation in the court below.

10.  It is quite plain to us that the notice of appeal and the submissions have been carefully prepared by a person with legal knowledge (containing numerous citations from legal authorities) deploying arguments with substantial forensic skill.

11.  Hence, the case as presented to us (in terms of the grounds of challenge against the decision of the Board) is very different from the case as presented to the Judge.

12.  In Re Litoun Mounsy [2018] HKCA 537 at [11]; Re Tutul [2018] HKCA 552 at [15]; and Re Shrestha Mahesh [2018] HKCA 619 at [14], it has been held that in an appeal against the refusal of leave by a judge in the Court of First Instance, 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.  Further, the scope for new arguments to be run is limited.  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.  It was also emphasized that 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.

13.  Nothing in this judgment should be interpreted as derogation from the above general principles which we would affirm and remain as applicable to appeals of this nature. Notwithstanding those principles, this Court has a discretion to allow new grounds to be canvassed in the interest of justice and there had been instances where this Court was persuaded to reverse decision refusing to grant leave to apply for judicial review on new grounds: see for example Chee Fei Ming v Director of Food and Environmental Hygiene (No 2) [2016] 3 HKLRD 412; Ng Shek Wai v Medical Council of Hong Kong CACV 14 of 2014, 30 July 2014. However, that discretion is not to be exercised lightly, see Yu Hung Hsua Julie v Chinese University of Hong Kong [2016] 5 HKLRD 393; Wong Ho Tong v Director of Lands [2018] HKCA 330.

14.  At the hearing, upon our enquiry, the applicant explained that he was only able to procure assistance from an organization called Justice Centre after the decision of the court below. The notice of appeal and skeleton submissions were prepared with such assistance.

15.  The new grounds related to the approach adopted by the Board in the assessment of the materials before it and the failure of the Board to give proper assessment to the implications of the alleged murder conviction in his absence in light of this Court’s decision in Re Mohammad Palash [2018] HKCA 417. The Board at para 3.5 of its decision appeared to focus on the fact that the applicant had (only) heard of events including a warrant for his arrest for murder, but there had been produced documents which appear to be from the Court in Bangladesh comprising (1) a complaint dated 14/9/2006 concerning an alleged murder incident, (2) a complaint concerning an incident in November 2006 and (3) a Court Order dated 10/11/2008 charging the applicant among others for these incidents.  Further, regarding these charges, at para 9 the Board stated that “whether he is innocent or guilty is irrelevant, because legal sanction is not ‘Torture’ per exclusion within ‘Element 4’ ”, etc.  In so finding, the Board does not appear to have taken into account the applicant’s case that the complaints leading to these charges were part and parcel of the applicant’s claim of the vendetta against him.  In the particular circumstances of the present case, giving due allowance for the difficulties of a person in the position of the applicant, we are satisfied that the Court should consider them notwithstanding his failure to raise the same below.

16.  With the benefit of those grounds, we are of the view that the intended application for judicial review is reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

17.  We would therefore allow the appeal and grant leave to the applicant to apply for judicial review.  In accordance with Order 53 Rule 5, he should file and serve an originating summons within 14 days from the date of our judgment.  The originating summons should set out the grounds he relied upon in the notice of appeal and the submissions of 2 October 2018.