RE NABIN FAKIR

CACV 583/2018

[2019] HKCA 656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 583 OF 2018

(ON APPEAL FROM HCAL NO. 232 OF 2018)

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J U D G M E N T

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Hon Yeung Ag CJHC (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Judge”) on 11 December 2018, refusing to grant the applicant leave for judicial review.

2.  Pursuant to the Order made by Master Au-Yeung on 10 January 2019, 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 1 April 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 in accordance with 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.

Background

3.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 2571.  We shall not repeat the same here.

4.  Briefly stated, the applicant is a national of Bangladesh. He entered Hong Kong illegally on 24 September 2013.  He was arrested by the police on 15 October 2013 and was referred to the Immigration Department for investigation on 17 October 2013.  On 19 October 2013, he lodged a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by family members of Delawar and their associates as the applicant was involved in the killing of Delawar, who was a candidate of the “Chairman election” of the Bangladesh Nationalist Party (“BNP”) when the applicant was a supporter of the Bangladesh Awami League (“AL”).

5.  By a Notice of Decision dated 20 November 2015, 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 3 October 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.  After the hearing on 18 January 2018, the Board dismissed the appeal on 7 February 2018.  The Board found that the applicant’s evidence was doubtful and incredible as he displayed little knowledge, or none about AL party and gave conflicting evidence when he joined the AL.  He was unable to explain the so called “Chairman’s election” which he claimed Delawar was a candidate.  His evidence relating to the murder of Delawar was inherently incredible and far-fetched, see [42] to [52] of the Board’s decision.  On totality of the evidence, the Board did not accept that the applicant was involved in the murder of Delawar or in any act of serious political violence.  For the reasons set out above, the Board was not persuaded, even on the low standard applicable, that there is a real risk that the applicant would be subjected to serious harm if he were refouled to Bangladesh.  The Board rejected his case on non-refoulement claim on all applicable grounds. 

7.  On 13 February 2018, the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision.  In the supporting affirmation filed on the same day, the applicant put forward the following grounds to support his intended challenge:

(1)   failing to carry out sufficient research and inquiry into Country of Origin Information (“COI”) and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(2)   failing to take into account or putting proper weighton relevant COI, cherry picked COI and put weight on irrelevant COI in the consideration of his claim;

(3)   failing to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(4)   failing to analyse and assess whether state protection exists in Bangladesh and misdirected himself as to the extended meaning of state protection;

(5)   taking into account and putting weight on irrelevant consideration or based on incorrect or inaccurate facts;

(6)   failing to call for psychological and psychiatric evaluations and reports on the applicant;

(7)   applying the incorrect standard of proof in his decision; and

(8)   lack of legal representation.

The Judge’s decision

8.  On 11 December 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 [32] – [49] for his refusal to grant leave:

“ Discussion

32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul: –

“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 scrutinising 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.” (CACV 219/2018 [2018] HKCA 570, para 14(1))

34. It was wrong for the Applicant to say the Director had not screened his non-refoulement claim with respect to BOR2 risk. The Director’s further decision dated 3 October 2017 was on BOR2 risk. The Applicant failed to submit additional facts for the Director's consideration. The Director was entitled to consider the Applicant’s claim with respect to BOR2 risk without holding further interview. The Director’s further decision must be read in conjunction with his earlier decision dated 20 November 2015, where there was a detailed analysis of the Applicant’s case.

35. The Applicant complained there were failures by the assigned duty lawyer at first instance. The Applicant, however, failed to provide particulars.

36. The Applicant complained there was a lack of and/or insufficient legal representation. He had been represented by the Duty Lawyer Service up to the Director's decision dated 20 November 2015.

37. 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 (CACV 284/2017 Re Paswan Shibu Lal, para 21). The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

38. The Applicant raised his language problem. In the current application, a friend helped 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 at all material times. Furthermore, he was assisted by qualified interpreters when he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.

39. The Applicant complained he received the appeal bundle only a few days before the Board hearing.

40. 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.

41. The Director stated in his letter dated 12 September 2018 that the appeal bundle was sent to the Applicant on 12 January 2018. That was 6 calendar days (or 5 working days) prior to the Board hearing scheduled for 18 January 2018. Thus, the bundle was served on the Applicant in time.

42. 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. There was no evidence to show the bundle was difficult or voluminous.

43. 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 his appeal. He had not complained to the Adjudicator or asked for adjournment during the appeal hearing.

44. The Applicant said he answered all the questions honestly in the Board hearing. That would mean he knew well what was asked and how to answer. He was not confused.

45. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he disbelieved the Applicant's claim and found the Applicant failed to establish any risk that warranted non-refoulement protection. For the same reason, there was no need to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights.

46. There was no evidence the Adjudicator cherry-picked information or took into account outdated cases/irrelevant information/information not officially recognised or simply hearsay.

47. There was also no evidence the Adjudicator applied the wrong standard of proof.

48. 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 of the case. 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. None of the Applicant’s complaints is substantiated.

Conclusion

49.  The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.”

The Appeal

9.  The applicant filed the Notice of Appeal on 17 December 2018 in which he set out following ground of appeal:

“I have a lot of problem in Bangladesh. If I return, my enemy will kill me many time. They try to kill me. At last, I run to Hong Kong. My enemy still waiting for me (to) return to Bangladesh. They will take the chance if I return.”

Discussion

10.  The ground of appeal as set out in the Notice of Appeal did not identify any error of the Judge’s decision and is not a viable ground for of appeal.  Further, the Board had rightly found at [52] of its decision that the applicant was not involved in the claimed murder of Delawar and he had concocted the factual basis of his case in order to advance his claim for non-refoulement protection.  We are satisfied that the Board’s findings were reviewed under “rigorous examination and anxious scrutiny” by the Judge and we find nothing amiss in the Judge’s decision.  The ground of appeal plainly has no prospect of success.

11.  In any event, having read the materials put before us, we are of the view that the findings of the Board, as well as the observations of the Judge, are justified.  We do not see any errors of law or procedure in the proceedings before the Board.  Nor is there any reasonable arguable basis to challenge the fairness of the process.  Determination of the merits of a non-refoulement claim is essentially a matter of the Board, not for the court.  We do not see any reasonable basis to upset the decision of the Board by way of judicial review.  Accordingly, we agree with the Judge that leave to apply for judicial review should be refused.

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