IBRAHIM v. SIMON RUSSELL, ESQ.

CACV 310/2019

[2019] HKCA 1327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 310 OF 2019

(ON APPEAL FROM HCAL 1748/2018)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) on 26 June 2019 refusing leave to the applicant to apply for judicial review. 

Background

2.  The applicant is a national of Bangladesh.  He arrived in Hong Kong on 13 May 2006 on the strength of his Bangladeshi passport.  He was permitted to remain as a visitor until 27 May 2006.  He did not depart upon the expiry of his permission to remain and overstayed illegally.  He was arrested by the police on 25 October 2007.  He was charged and convicted of the offence of breach of condition of stay and taking up employment.  He was sentenced to three months’ imprisonment.  After he had served his sentence, he lodged a claim under Article 3 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT claim”) on 5 July 2008.  His CAT claim was treated as a non-refoulement claim upon the commencement of the unified screening mechanism (“USM”) on 3 March 2014.

3.  The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by the members of Awami League (“AL”) because of the dispute between them and his family, who were members of AL’s political rival, the Bangladesh Nationalist Party.  It was his claim that he was falsely accused by his enemies of a number of charges, including a charge of attempted murder.  He was subsequently convicted in his absence though the trials took place with lawyers representing him.  There had been unsuccessful appeal by his lawyer on his behalf.  The case of attempted murder was concluded in 2016.  The applicant did not provide information to the courts on the sentence imposed in that case.  There was an earlier conviction in Bangladesh in his absence for another offence for which he was sentenced to 10 years’ imprisonment and a fine.  The factual background of the case was summarized by the Judge in [3] of the Form CALL-1 ([2019] HKCFI 1625).

4.  Under the USM scheme, the Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, including the risk of violation of the absolute and non-degorable rights guaranteed under the Hong Kong Bill of Rights (particularly the BOR 2 risk[1] and the BOR 3 risk[2]), the persecution risk[3], and the torture risk[4].  By a notice of decision dated 5 January 2017[5], the Director determined the claim against the applicant.

5.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board/an adjudicator of the Non-refoulement Claims Petition Office (“the Board”) against the Director’s decision.  An oral hearing was held on 20 April 2018 at which the applicant elected to give evidence.  By a decision given on 10 August 2018, the Board dismissed the applicant’s appeal/petition.  In the decision, the Board noted that the applicant failed to seek non-refoulement protection at the first opportunity available to him, but instead waited until the expiry of his permission to remain in Hong Kong[6]. The Board also found no suggestion that the prosecution against the applicant was brought with ulterior political motive[7].  It was also found that internal relocation was a viable option for the applicant[8]. Accordingly, the Board was not satisfied that the applicant would face a substantial risk of harm if refouled. 

The Judge’s decision

6.  By a Form 86 filed on 27 August 2018, the applicant sought leave to apply for judicial review against the Board’s decision.  In the document attached to the Form 86, the applicant put forth the following nine grounds of review:

(1)     The adjudicator misdirected himself that the applicant was required to experience torture in the past to establish substantial grounds for being subjected to torture in future;

(2)     The adjudicator failed to carry out sufficient research and inquiry into the country of origin information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(3)     The adjudicator cherry-picked COI information and relied on outdated COI;

(4)     The adjudicator failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(5)     The adjudicator failed to analyse state protection in Bangladesh.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(6)     The adjudicator took into account incorrect facts and failed to give weight to facts favorable to the applicant.  There were no particulars for this ground;

(7)     The adjudicator failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(8)     The adjudicator applied incorrect standard of proof; and

(9)     The duty lawyer failed at the first instance to give sufficient legal representation.

7.  In his supporting affirmation filed on the same date, the applicant set out a number of additional grounds.  In [10] of the Form CALL-1, the Judge categorized them into six main ones.  Briefly stated, ground (1) related to the lack of legal representation; grounds (2) and (3) concerned the late delivery, as well as the lack of translation, of the hearing bundle; grounds (4) and (6) criticized the Board regarding its handling of the COI materials and for its failure to understand the applicant’s situation; and ground (5) was about the absence of screening mechanism. 

8.  The Judge held an oral hearing on 27 March 2019.

9.  As mentioned earlier, the Judge refused to grant leave for the applicant to apply for judicial review.  His reasons in refusing leave were set out in [11] – [17] of the Form CALL-1 as follows:

“ 11. The applicant appeared before me. He confirmed that he had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. He also confirmed that he understood the Director’s Decision as his lawyer explained to him. He understood the Board’s Decision as his friend explained it to him. I explained the board findings above to him and asked if he had any comments. He did not have any comment.

12. It is quite obvious that the Board considered his case and applied the relevant statutory provisions and Convention to it before coming to his conclusion.

13. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Ground (1) fails.

14. Grounds (2) and (3) fail as they are inconsistent with what he said in Court.

15. Grounds (4) and (6) are his opinions without any evidence in support of them.

16. Ground (5) is irrelevant as he had been screened for all the risks in one go.

17. The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.”

The appeal

10.  On 4 July 2019, the applicant filed a notice of appeal against the Judge’s decision.  The applicant did not set out any grounds of appeal, but instead referred to his supporting affirmation for the same.

11.  In the supporting affirmation filed on the same date, the applicant advanced two grounds of appeal, namely:

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

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

12.  In his skeleton submission lodged on 4 October 2019, the applicant cited ST v Director of Immigration[9] [2014] 4 HKLRD 277 and quoted passages from Secretary for Security v Sakthevel Prabakar [2005] 1 HKRLD 289 for the proposition that high standards of fairness are required in the determination of a torture claim.  He also made reference to Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Ltd v Stock Exchange of Hong Kong Ltd [1999] 2 HKLRD 243, and Rowse v Secretary for the Civil Service [2008] 5 HKLRD 217 for the proposition that the decision maker has a “duty to act fairly”.

13.  We heard the appeal on 25 November 2019.

General principles

14.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(1)     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 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.

(2)     An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced before, and rejected, by the judge.  In the determination of an appeal, 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.

(3)     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 was a fresh application for judicial review.

Discussion

15.  In the present case, the Board rejected the applicant’s non-refoulement claim on the ground that it was not satisfied that the applicant would face a substantial risk of harm if refouled.  It was also found that internal relocation was a viable option.  As explained above, the assessments of risk of harm and the viability of internal relocation are within the province of the Board.  The Court will not intervene with such findings unless they contained errors on public law grounds.  Having considered the materials available before him, the Judge did not find any of such grounds.

16.  In this appeal, the applicant advanced two grounds of appeal to challenge the Judge’s decision.  In our view, the Judge gave adequate reasons for his determination addressing the grounds raised by the applicant in his supporting affirmation. 

17.  However, the Judge did not address the grounds in the Form 86. In the circumstances, if there is any substance in those grounds the appeal should be allowed.  Having considered those grounds, we are of the view that they are devoid of any merits.  Indeed, we have come across similar arguments on many occasions in handling appeals of similar nature.  As this Court (differently constituted) pointed out in Re Mizan Sikder [2019] HKCA 20 at [17], many of these arguments lack specific reference to requisite particulars on the facts of the case. Such general assertions cannot constitute valid grounds for challenging the Board’s decision. 

18.  The ground concerning COI assessment being outdated is factually incorrect.  The Board referred to COI materials in 2016, 2017 and 2018 in its decision.

19.  We note that in the Form 86 at [7] (at p.7 under Background of the Applicant’s claim), it was asserted that he had never been accused, charged, interrogated, arrested, detained or imprisoned in Bangladesh.  He did not refer to his court cases and convictions in Bangladesh in the Form 86 and his affirmation.  He only alluded to threats from the AL as the basis for his fear in the application for judicial review.   

20.  However, the Judge was aware of his court cases as he referred to the same at [3] of the Form CALL-1.

21.  In the Board’s decision, the court cases were at the forefront of its consideration, see [13] to [19] of the decision.  At [19], the Board attached some credence to the applicant’s story without going so far as to say it is probably true.

22.  Neither the Board nor the Judge addressed their minds to the human right implications of the convictions in his absence as discussed by this Court in Re Mohammad Palash [2018] HKCA 417.

23.  Due to the way in which the case was conducted before the Judge, the materials presented to the Board on those court cases and convictions are not available to us.

24.  In view of the high standard of fairness for processing these cases, we shall adjourn this appeal (part-heard) and direct the Director (as putative interested party) to lodge a bundle of documents concerning those court cases and convictions of the applicant (which were before the Board, see [19] of the Board’s decision) and lodge and serve written submissions on this aspect of the case in light of Re Mohammad Palash, supra, within 28 days from the handing down of this judgment.

25.  The applicant may lodge and serve written submission on this aspect of the case within 21 days thereafter.

26.  We shall then consider these additional materials and notify the applicant and the Director if it is necessary to have a further oral hearing. Alternatively, if we find it possible to decide the matter on the papers, we shall notify the parties of the date of the handing down of our judgment.