SHEIK FORIED UDDIN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 250/2019

[2019] HKCA 1169

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 250 OF 2019

(ON APPEAL FROM HCAL NO 110 OF 2018)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge Josiah Lam on 31 May 2019 refusing leave to the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim.

2.  The applicant is a national of Bangladesh. He went to Hong Kong on 7 August 2006 and overstayed from 22 August 2006. He was arrested by the police on 22 April 2009 and he then raised a torture claim which was withdrawn in July 2012. He had applied to the UNHCR for asylum in 2006 and the application was rejected by the UNHCR in July 2012. He was repatriated to Bangladesh on 13 August 2012.

3.  He left Bangladesh for China in late June 2013 and sneaked into Hong Kong on 18 July 2013. He was arrested by the police again on 6 December 2013 and raised a non-refoulement claim subsequently.  He claimed that he would be harmed or killed by people of the Awami League (“AL”) as he was a member of the Jatiyatabadi Chhatra Dal which was the student wing of the Bangladesh Nationalist Party and he previously had a part in pursuing three murderers who are members of AL.  

The Director’s Decision

4.  By a Notice of Decision dated 3 January 2017, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk.  

5.  The Director did not accept that there would be real risk of harm upon the applicant’s return to Bangladesh because of the low intensity and frequency of past ill-treatment from the AL people. Furthermore, the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk. Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

6.  The applicant attended the hearing of the appeal against the Director’s decision on 6 December 2017. The Board found that the applicant fabricated his claims. The Board observed that the applicant was never seriously harmed in the alleged incidents even according to his own evidence. The Board also did not accept, among other things, that it would have been so easy for the applicant to re-enter and exit from Bangladesh if there had been 17 false cases against him. Therefore, the Board rejected the appeal on 12 January 2018.

The intended judicial review

7.  The applicant filed a Form 86 and an affirmation on 23 January 2018 to seek leave to apply for judicial review against the decision of the Board. The grounds were summarized in the judge’s decision at paragraphs 24 to 26, which are as follows:  

“24. 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.

25. The Applicant 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. He complained the Adjudicator failed to make appropriate arrangement.

26.  The Applicant further complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay.”

The judge’s decision

8.  The judge held that the applicant’s complaints are not reasonably arguable for reasons stated in paragraphs 32 to 42 of his decision: 

“32. The Applicant complained he received the appeal bundle only on or about 29 November 2017 before the Board hearing scheduled for 6 December 2017.

33. 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.

34. The Applicant received the appeal bundle 7 calendar days (or 6 working days) prior to the Board hearing. The bundle was served on the Applicant in time.

35. 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.

36. A few days certainly were 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 to show the Applicant had so complained to the Adjudicator or asked for adjournment during the appeal hearing.

37. In court, the Applicant admitted he had more than one friend to help him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents. Furthermore, he was assisted by a qualified interpreter in the appeal hearing before the Adjudicator. The Applicant had much exaggerated his language problem.

38. The Applicant mentioned he was unrepresented during the appeal stage.

39. 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. The Applicant 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.

40. Applicant said he was confused in the appeal hearing. However, in his affirmation the Applicant said he answered all the questions honestly. That would mean he knew well what was asked and how to answer. He was not confused.

41. The Applicant complained the Adjudicator had relied on outdated cases or information not officially recognised or simply hearsay. There was no evidence of that.

42.  I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’.  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. He considered the Applicant’s claim carefully and applied the law correctly.  The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.”

9.  The judge found that the applicant has no realistic prospect of success in the sought judicial review and therefore the leave application was refused.

The grounds of appeal

10.  The applicant filed a Notice of Appeal against the decision of the judge on 11 June 2019. In a supplemental notice of appeal filed on 17 July 2019, he reiterated the background of his case and stated his grounds of appeal which may be summarized as follows:

(1) The immigration officer wrongly found that the problem the applicant faced was not serious and assumed he only came to Hong Kong to earn money;

(2) The officer asked many unrelated questions in the screening interview. It is not enough to make decision only by asking questions. 

(3) The Board totally followed the director’s decision and refused the claim without proper investigation. 

(4) The judge did not want to listen to the applicant’s problem in Bangladesh and only asked him to point out the legal errors of the adjudicator. The applicant is illiterate and cannot read or write English but the court did not provide any lawyer to help him.

11.  The applicant lodged his written submission on 16 September 2019 in which he added the following grounds:

(1) Both the Director and the Board did not give the applicant enough time to tell his story.

(2) The interpreter service of the Director and the Board is very bad. All of the interpreters take money from authority so the applicant thinks that they work against him and are not professional.

(3) The screening process is not correct. If the Director keeps all refugees in a camp without earning money, the Director can get good result within six months.

(4) The Board did not provide any lawyer for the applicant and this is his basic right to get help from a lawyer.

(5) The adjudicator should be a neutral person but he talked with the applicant like an enemy at the hearing. 

12.  The above grounds were not raised in the original leave application. As stated under paragraph 7 above, in the leave application the applicant mainly focused on his complaints about the insufficient time for him to prepare for the hearing and the lack of credible source of information which resulted in the Board making groundless speculations on his case.

Legal Principles

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  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 Country of Origin Information (“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.  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 determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

16.  In respect of new arguments, the Court of Appeal will not generally entertain fact-and-evidence sensitive new arguments which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

17.  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.

Analysis and disposition

18.  An appeal is not the occasion for an applicant to introduce new grounds after the original grounds failed at the court below[4]. Therefore, the Court of Appeal will not entertain the applicant’s grounds of appeal in relation to the decisions of the Director and the Board which are only raised now at the appeal stage.

19.  In any event, the applicant’s complaints regarding the Director is bound to fail as the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant according to Re Moshsin Ali^[5]. 

20.  The applicant also failed to provide any specifics or evidence in support which can refute the adjudicator’s findings or show that there are errors of law or procedural unfairness or irrationality in the decision of the adjudicator. The Board conducted a hearing to consider the matter afresh. The adjudicator reached his own determination and gave detailed explanation in his written decision.

21.  The applicant complained that the judge did not want to listen to his problem in Bangladesh and only asked him to point out the legal errors of the adjudicator. In fact, the judge invited the applicant to elaborate his grounds at the hearing. This shows that the applicant was given the opportunity to present his case. The applicant failed to demonstrate that the judge failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

22.  As for the ground relating to the lack of legal representation before the judge, 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[6]. Therefore, this ground is without merit.

23.  For the above reasons, none of the grounds of appeal raised by the applicant are viable for reversing the decision of the judge. 

24.  There is no merit in the appeal and no prospect of success in the intended application for judicial review. We therefore dismiss this appeal.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] This refers to the risk of being arbitrarily deprived of his life under article 2 of the Hong Kong Bill of Rights.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights.

[4] Re Qadir Sher [2018] HKCA 160 at §11

[5] [2018] HKCA 549, CACV54/2018, unreported, 24 August 2018, at §45

[6] CACV 284/2017 Re: Paswan Shibu Lal, para 21