MIZI MOHAMMAD AKKACH v. TORTURE CLAIMS APPEAL BOARD / NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 369/2019

[2019] HKCA 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 369 OF 2019

(ON APPEAL FROM HCAL 609 OF 2018)

________________________

________________________

____________________

J U D G M E N T

____________________

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

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) as set out in the Form CALL‑1 dated 30 July 2019 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2019] HKCFI 1899.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 16 August 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 16 February 2015 (“the Director’s First Decision”) and 17 May 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  By a letter dated 9 August 2019, the applicant gave consent to the appeal being heard by a two-member court. 

A.  Background

3.  The applicant is a national of Bangladesh.  He was arrested by the Hong Kong police as an illegal immigrant on 5 May 2013.  He lodged a non-refoulement claim on 9 May 2013.

4.  The details of the applicant’s claim and his personal background were set out in paragraph 6 of the Director’s First Decision, and paragraph 19 of the Board’s Decision.

5.  Briefly stated, the applicant claimed that he would be harmed or killed by his brother, Abbas, if he returned to Bangladesh.  The applicant claimed that his brother was associated with the Awami League Party (“AL”).  From around 1998 to 2010, the applicant worked in Saudi Arabia.  During these years, he sent his earnings to Abbas so that Abbas could help him buy lands and keep the savings safe.  In around 2010, he went back home.  However, when he wanted to start a small business with the monies sent to Abbas, Abbas refused to give the monies back. Not only did Abbas refuse to return the money to the applicant, he also warned the others not to lend the applicant money.  Meanwhile, whenever the applicant asked Abbas for money, Abbas would slap him or threaten him.  The applicant felt unsafe and fled his home country. 

B.  The Director’s Decisions and the Board’s Decision

6.  The Director assessed the BOR3 risk^[1], the persecution risk^[2] and the torture risk^[3] in the Director’s First Decision.  By the Director’s Second Decision, the Director assessed the BOR2 risk^[4].  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”. 

7.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 1 September 2016 and 12 July 2017 respectively.  The applicant elected not to give evidence on the 1 September 2016 hearing and did not add useful information on the hearing dated 12 July 2017.  After considering all the evidence, the Board concluded that the applicant had failed to establish a case for non-refoulement protection on any of the applicable grounds and dismissed his appeal.

8.  The Board found that the applicant’s claim was simply not credible.  There was no evidence that, despite being a member of AL, Abbas had asserted his political influence on the applicant.  Further, it was his own speculation that Abbas sent villagers to find him.  Meanwhile, it was bluntly illogical for the applicant to claim that he intended to go to Italy to save his life since no one would choose to go to Italy through China (paragraphs 22-29 of the Board’s Decision).  The Board also found state protection and internal relocation were available to the applicant (paragraphs 32-35 and 50-52 of the Board’s Decision).  As a result, the Board dismissed the applicant’s appeal.

C.  The Deputy Judge’s Decision

9.  The applicant filed a Form 86 on 11 April 2018 seeking leave to apply for judicial review against the Board’s Decision.  The grounds of review stated in the Form 86 and his supporting affirmation filed on the same date were summarized by the Deputy Judge at paragraphs 23-25 of the Deputy Judge’s Decision as follows:

“23. 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.

24. The Applicant 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 of what happened.

25. The Applicant further complained the Adjudicator relied on outdated cases, information not officially recognized or simply hearsay.”

10.  The Deputy Judge heard the applicant’s leave application on 20 September 2018.  During the hearing, an interpreter was arranged for the applicant.  The Deputy Judge first considered the applicant’s reason for the late filing of the leave application.  He accepted the applicant’s explanation that he did not receive the Board’s Decision and extended the time to the applicant for the leave application. Nevertheless, after the hearing, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out the following reasons in paragraphs 38-54 of the Deputy Judge’s Decision:

“38. I now consider the merit of the Applicant's complaints against the Adjudicator.

39. The Applicant complained about the lack of legal representation.

40. The Applicant was represented by the Duty Lawyer Service up to the Director's decision dated 16 February 2015.

41. 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 his case was undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

42. The Applicant raised his language problem.

43. It is trite the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant.

44. In the current application, Form 86 and the Applicant's affirmation were prepared in English.  Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times.  Furthermore, the Applicant was assisted by a qualified interpreter when he was before the Adjudicator. The Applicant had much exaggerated his language problem.

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

46. 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.

47. The Applicant said he received the appeal bundle on or about 25 August 2016. That was 7 calendar days (or 6 working days) prior to the first Board hearing scheduled for 1 September 2016. The bundle was served on the Applicant in time.

48. 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.

49. 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.  He elected not to give evidence on 1 September 2016.

50. On 12 July 2017, there was another Board hearing after the Director's further decision was issued on 17 May 2017.  The Applicant again attended the hearing.  He had nothing useful to add.

51. There was no evidence the Applicant was confused in either of the two Board hearings.

52. In court, the Applicant confirmed he had presented all of his case to the Director and the Adjudicator.  Clearly, he had been given sufficient time and opportunities to explain his case in the whole screening process.

53. The Applicant complained the Adjudicator took into account outdated cases, information not officially recognised or simply hearsay.  There was no such evidence.  The Applicant failed to be specific.

54. 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.”

D. Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 9 August 2019 to appeal the Deputy Judge’s Decision. He stated that the Deputy Judge did not have a good cause to dismiss his claim and repeated his arguments before the Deputy Judge in relation to the lack of legal and language assistances.  Other than the vague allegations, he failed to identify any errors in the Deputy Judge’s Decision.

12.  On 16 October 2019, Pursuant to Master Au-Yeung’s directions dated 3 September 2019, the applicant filed his skeleton submissions.  He argued that the decision makers (i.e., the Board and the Director) failed to investigate in his claim and simply asked him the same questions.  He also submitted that the decision makers misread the country of origin report and they should’ve found that he could not have state protection and were unable to relocate internally. 

13.  At this hearing, the applicant confirmed that he had nothing further to add to what had already been set out in the Notice of Appeal and the written submission in support of this appeal.

E.  Discussion

14.  The relevant principles regarding appeals on non‑refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  They can be summarized as follows.

15.  First, 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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

16.  Second, an appeal against the refusal of leave by a judge in the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In determining 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 has made errors of law or failed to take into account of relevant matters already placed before the court or was otherwise plainly wrong.

17.  Third, 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 the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

18.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

19.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

20.  The grounds relating to the lack of language and legal assistances are basically regurgitation of the arguments advanced but failed before the Deputy Judge.  These two grounds have no merit.  It has been repeatedly emphasized by this court that the high standard of fairness required by law would not entail interpretation service being made available to an applicant all the time as he may desire: see Re Gurnishan Singh [2018] HKCA 704; and Re Gurung Sagar [2019] HKCA 658.

21.  In the present case, all the court documents, including the affirmation filed in support of the leave application, the notice of appeal, and the written submission in support of this appeal, were written in English.  Either the applicant is himself conversant with the English language or he has access to language assistance of his own if he deemed necessary.  Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer.  He was also present before the Board and the Deputy Judge with an interpreter.  Nevertheless, no complaint was raised before the Board or the Deputy Judge in relation to the lack of language assistance or the performance of the interpreter.  Thus, we do not accept that the alleged lack of language assistance would render the process unfair in the present case.

22.  Further, we note that in the applicant’s Form 86 for the leave application before the Deputy Judge, he was able to identify the alleged errors by the Director and the Board.  Therefore, there is nothing to suggest that the applicant suffered any prejudice from the alleged lack of legal assistance.  In any event, this Court has emphasised repeatedly that as a matter of law, a non-refoulement claimant is not entitled to free legal representation at all stages of the process: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; and Re Lopchan Subash [2018] HKCA 37.  There is therefore no merit in this ground.

23.  In addition, we do not accept the applicant’s ground that there were no good causes in the Deputy Judge’s Decision in dismissing his claim.  It is clear from the Deputy Judge’s Decision that he has provided sufficiently detailed reasons for his conclusion (paragraphs 30-54 of the Deputy Judge’s Decision).  This ground of appeal is also entirely unmeritorious.

24.  As to the allegations that the Board and the Director failed to investigate his claims, the applicant was given ample opportunities to elaborate his claim before the Board.  He failed to provide with sufficient clarities as to how the Board failed to investigate his claim.  As rightly determined by the Deputy Judge, the Board had discharge its duty and did not commit any errors in assessing the applicant’s appeal.  That said, this is a ground against the decision makers but not the Deputy Judge.  Thus, it is not a viable ground. 

25.  In any event, we have reviewed both the Board’s Decision and the Deputy Judge’s Decision and the reasons they gave for their decisions.  We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Deputy Judge’s Decision.

F.  Disposition

26.  For all the reasons given above, the applicant’s appeal has no merits at all.  Accordingly, we dismiss the appeal.