RE MAIN UDDIN

CACV 370/2018

[2018] HKCA 970

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 370 OF 2018

(ON APPEAL FROM HCAL 60/2017)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the Judge”) on 24 July 2018 in HCAL 60/2017 refusing leave to the applicant to apply for judicial review. 

2.  The applicant made an application for legal aid on 31 October 2018 despite earlier applications having failed.  By an order made by Hon Yeung VP, Acting Chief Judge of the High Court, on 7 November 2018, the stay of proceedings under section 15 of the Legal Aid Ordinance was lifted and the hearing fixed for 7 December 2018 was directed to stand.  However, because of the applicant’s non-compliance with the direction for lodging skeletons submission within the prescribed time (ie not less than 28 days before the hearing of the appeal fixed for 7 December 2018), the applicant was deemed to have waived his right to an oral hearing having been warned of this consequence by a letter from the court dated 31 August 2018, in which he was notified of the direction given.  As such, this appeal is processed on paper based on the materials already lodged according to the practice adopted by this court: see 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.

Background

3.  The applicant is a Bangladeshi national.  He entered into Hong Kong illegally on 1 December 2007 and was arrested by the police on 11 January 2008.  On 27 March 2009, he raised a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the members of Awami League (“AL”) because of his political affiliation with a rival political group, the Bangladesh Nationalist Party (“BNP”).

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1626.  We shall not repeat the same here.

5.  By a Notice of Decision dated 30 December 2014 (“the First Decision”), the Director of Immigration (“the Director”) decided against the applicant’s claim on BOR 3 risk, torture risk, and persecution risk.  By a Notice of Further Decision dated 2 August 2017 (“the Second Decision”), the Director also rejected the applicant’s claim on BOR 2 risk.

6.  The applicant appealed to the Torture Claims Appeal Board (“the Board”) in respect of the Director’s First Decision. After an oral hearing on 10 June 2015, the Board dismissed the appeal on 8 December 2016.  The Board found that there was no evidence suggesting that the alleged assaults by his ex-schoolmates were carried out for and on behalf of government officials and the applicant’s case failed for lack of credibility.  The availability of state protection and the possibility of internal relocation would further lower the risk.  The Board found that the applicant had failed to establish his non-refoulement claim for BOR 3 risk, torture risk and persecution risk.  

7.  The applicant also appealed to the Board against the Second Decision in respect of his claim on BOR 2 risk. After considering the applicant’s case and its previous decision which was applicable to the appeal against the Second Decision, the Board dismissed the appeal on paper on 13 September 2017.

The Judge’s decision

8.  The intended application for judicial review was in respect of the decisions of the Director and the Board.  The Form 86 filed on 2 March 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant set out the following grounds for judicial review (as summarized by the Judge at [23] of the CALL-1 Form):

(1)   The applicant acknowledged that he had the burden of proof but asserted that it was not realistic to expect a man in his situation to provide evidence other than his oral evidence.

(2)   The Board’s finding that the applicant was a fugitive from justice and there was no official acquiescence was a mistake of fact as the police attempted to frame him for murder.

(3)   The Board’s finding that the applicant did not suffer any severe pain or suffering was wrong and his eye injury was proof of this.

(4)   Internal relocation was not possible for the reason that if the applicant was arrested in Bangladesh, he would be connected to the murder charged in Toyabpur by the police.

(5)   Procedural impropriety and unfairness in failing to conduct an oral appeal hearing for the applicant’s claim on BOR 2 risk.

(6)   The Director failed to give reason for his rejection of the applicant’s claim on BOR 2 risk.

9.  On 24 July 2018, the Judge gave her 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 [24] – [32] for her refusal to grant leave:

“24. The applicant’s first ground is more of a statement and certainly not a complaint premised upon the grounds of illegality and/or procedural impropriety. The adjudicator did find the applicant had made bare assertions without direct evidence or personal experience. However, he also found much of it was hearsay or exaggerated and embellished. None of this detracts from the principle that the applicant does have the burden of proof.

25. The adjudicator did take into account both concepts of official acquiescence and extended acquiescence and was fully entitled to find there was no evidence of either type. There is no merit in the second ground.

26. There is no merit in the third ground; the adjudicator rightly cited the relevant principles against fleeing from legal sanctions. A refugee is a victim of injustice, not a fugitive from justice.

27. The adjudicator considered the fact there was no medical evidence to support the applicant’s assertion of serious harm or any evidence of psychiatric illness resulting from his misfortunes before assessing his torture risk as well as his BOR 3 risk; only his bare assertions. In any event, even on his own facts, his eye injury may not reach the minimum level of severity required.

28. The applicant’s fifth ground was not reasonably arguable; the adjudicator gave full reasons for his finding and cited relevant and up-to-date COI to support it. There are no proper grounds for interfering with such a finding, hence no merit in this ground.

29. In ground 6 submitted by the applicant during the oral hearing of this application, the adjudicator is accused of procedural impropriety and unfairness by failing to conduct an oral hearing. Having read both the Director’s decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained. The adjudicator went on to show that he fully understood the applicant’s case and evidence, considered Article 2 before finding that the applicant was unable to invoke the protection of BOR 2 for the purposes of a non-refoulement protection claim.

30. The last ground accuses the Director of failing to give any reasons for rejecting the applicant’s BOR 2 risk claim in his Notice of Further Decision dated 2 August 2017. The Director considered the additional information provided by the applicant in his letter dated 7 April 2017 and summarised it in his notice; there was no new evidence and the basis of his claim had not changed. The Director had no further questions and no further screening interview was required. He applied his findings from his previous decision to the provisions of BOR 2 and found the applicant had failed to invoke the protection of BOR 2. A reading of his previous decision shows the Director gave full reasons for his findings and there are no grounds to interfere with them. There is no merit in this last ground.

31. I do not find any ground that shows there was an error of law by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. The same applies to the Director.

32. In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17. I refuse leave to apply for judicial review.”

The appeal

10.  The Notice of Appeal was filed on 6 August 2018.  In it, the applicant put forward grounds of appeal which extended to 10 pages, attached to his Notice of Appeal.  The first six (typewritten) pages set out a variety of complaints regarding the Director’s Decisions and the last four (handwritten) pages made various complaints relating to the decisions of the Board.

Discussion

11.  In the determination of an appeal, this court focuses on the decision of the Judge and would only reverse that decision if the applicant can demonstrate that the Judge made errors of law, or failed to take into account relevant matters already placed before the court, or was otherwise plainly wrong, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

12.  With the aforesaid principle in mind, we note that the applicant has failed to put forward any viable grounds of appeal, as he has conspicuously failed to identify any error in the Judge’s decision, and has instead only directed his complaints towards the Director’s Decisions and the Board’s Decisions.  In any event, the Judge appears rightly to have found that the Director and the Board had carefully considered the applicant’s case and considered, as she was entitled to, that there was no error of law and no evidence to suggest procedural unfairness nor a failure to adhere to a high standard of fairness in respect ofthe decisions made by the Director and the Board: see [31] of CALL-1 Form.  We agree with the Judge that the applicant’s case was not reasonably arguable and that leave to apply for judicial review should not therefore be granted.

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

Postscript

14.  On 7 December 2018, when this judgment had already been prepared and approved by the court, the applicant sent a brief faxed statement to the court in which the applicant asserted that he had married and had two children and repeated that it would be dangerous for him to return to Bangladesh, and requested that he should be allowed to continue to remain in Hong Kong.  This document is not a skeleton submission, and was submitted well after the appeal had been vacated due to the applicant’s non-compliance with the court’s directions.  We have accordingly not had regard to it for the purposes of this judgment.  We would add, however, that it in any event contains no viable grounds of appeal against or basis for interfering with the judge’s decision.