RE AL AMIN SHAK MOHAMMAD

CACV 311 /2018

[2018] HKCA 740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2018

(ON APPEAL FROM HCAL NO 639 OF 2017)

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J U D G M E N T

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Hon Kwan JA (giving the judgment of the Court):

1.  This is the appeal of the applicant, Al Amin Shak Mohammad, against the decision of Deputy High Court Judge Woodcock on 3 July 2018. By her decision, the judge refused his application for leave to seek judicial review of the decisions of the Torture Claims Appeal Board (“the Board” or “the TCAB”) and the Director of Immigration (“the Director”) concerning his non‑refoulement protection claim.

2.  Directions were given by the Registrar of Civil Appeals on 10 August 2018 to lodge a skeleton argument not less than 28 days before the hearing of the appeal.  On 16 August 2018, a notice of hearing was issued stating that the appeal would be heard on 26 October 2018 at 9:30 am.  The applicant should have lodged his skeleton argument by 27 September 2018.  He did not do so.

3.  In the directions of the Registrar of 10 August, it was expressly stated that in the event the applicant fails to lodge his skeleton argument in accordance with the relevant direction, he shall be deemed to waive his right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper, and in such circumstances the hearing date shall be vacated and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

4.  In the notice of hearing issued on 16 August 2018, the applicant was reminded to comply with the directions given by the Registrar on 10 August.

5.  On 5 October 2018, the Court of Appeal issued a letter to the applicant to inform him that as he had failed to lodge his skeleton argument as directed, he is deemed to have waived his right to an oral hearing and elected to have this appeal disposed of on paper and that the hearing date of 26 October 2018 has been vacated.

6.  It was only on 8 October 2018 that the applicant lodged his skeleton submission.

7.  We will take into consideration his skeleton submission in our deliberation on paper.  But we decline to hold an oral hearing in light of the failure to lodge a skeleton argument within time despite the direction and warnings.

Background

8.  The applicant is a Bangladeshi national.  He entered Hong Kong illegally on 14 February 2016 and was arrested by the police on the same day.  He lodged his non‑refoulement claim on 14 March 2016.  His claim was based on his fear that if he were to return to Bangladesh, he would be harmed, or even killed, by people from a rival political party, the Awami League (“AL”), because of his active participation in the Bangladesh Nationalist Party (“BNP”).

The Director’s decision

9.  By the Notice of Decision dated 27 January 2017, the Director decided against the applicant’s claim.  The decision covered the torture risk[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4].

10.  The Director assessed that future risk of harm upon the applicant’s return to Bangladesh is unlikely because of the low intensity and frequency of ill‑treatment from the AL people in the past.  The availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.

11.  In addition, it was not accepted that the treatment the AL people had inflicted on the applicant, even if true, reached the threshold of a minimum level of severity for invocation of protection under BOR 3.

12.  The applicant also failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2(i) upon his return to Bangladesh (the facts of this case do not engage BOR 2(ii) to 2(vi)).

13.  It was also not accepted there are substantial grounds for believing that the applicant will be subject to torture upon his return to Bangladesh.

The Board’s decision

14.  The applicant appealed to the Board against the Director’s decision.  After a hearing on 16 August 2017, the Board dismissed the appeal on 6 September 2017.  The Board found that the applicant does not face genuine and substantial risk of being subjected to severe physical and mental pain or suffering or of being killed or otherwise seriously mistreated by AL should he return to Bangladesh and there is no risk of a violation of his right to life.

The intended judicial review

15.  The applicant filed the Form 86 on 18 September 2017.  The intended judicial review was in respect of the decisions of the Director and the Board.  He sought to rely on the following grounds:

(1)   the respondent had unlawfully fettered his discretion by refusing the applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)   the adjudicator acted in a procedurally unfair manner in dealing with the applicant’s appeal;

(3)   the respondent’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, or are a result of procedural errors or unfairness;

(4)   the respondent failed to meet the greater care and duty owed to a self-represented claimant.

The judge’s decision

16.  The applicant was absent on the day of the hearing.  The judge gave the following reasons in refusing leave to apply for judicial review in the Call‑1 Form dated 3 July 2018:

“13.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

14.  In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the adjudicator explained the process to him and the applicant adopted the appeal bundle.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

15.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh [2018] HKCA 246 at (13) said that:

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

16.  The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  What information he did consider relevant in spite of his finding against the applicant’s credibility, was clearly relevant, up‑to‑date and objective.  I find no merit in this ground.

17.  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.”

17.  The applicant filed the Notice of Appeal against the decision of the judge on 12 July 2018.

Grounds of appeal

18.  The applicant gave the following grounds of appeal in his Notice of Appeal filed on 12 July 2018:

(1)   the applicant will face hardship if he is to return to his home country;

(2)   the Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay.  It has also relied on some cases which are outdated considering the dramatic changes.  The lack of credible source of information has resulted in groundless speculations.

19.  Ground 1 was not expressly stated in the application for leave to apply for judicial review while ground 2 was previously raised.

Legal principles

20.  The relevant legal principles have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and are as follows:

(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 the 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.

(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 and rejected by the judge or for running arguments which could and should have been raised but were not raised before 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 respect of new argument, this court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)   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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court.

Analysis

21.  Ground 1 was not stated in the form 86 or the applicant’s affirmation in support of his application for leave to apply for judicial review.  The Court of Appeal will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

22.  Furthermore, the Court of Appeal would only reverse the judge’s 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.  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 Board had explained in detail[5] why it did not accept that the applicant was ever a member of the BNP.  The applicant failed to show there are errors of law or procedural unfairness or irrationality in the decision of the Board and/or the Director.  Thus, the court will not intervene by way of judicial review even if this ground was raised before the judge.

23.  Hence, ground 1 is bound to fail.

24.  The applicant’s complaint in ground 2 is just a bare assertion without evidence in support which can rebut the Board’s findings. Besides, he has not pointed out which pieces of information or cases relied on by the Board were outdated whilst the Board had considered a wide range of information from different sources covering the period between 2014 and 2015[6].

25.  Ground 2 has no merit as the applicant failed to show any errors of law or procedural unfairness or irrationality in the decision of the Board.

26.  In his skeleton submission, the applicant stressed that high standards of fairness are required in the determination of a torture claim because of the gravity of what is at stake and he should be given every reasonable opportunity to establish his claim.  However, he did not point out in what way, if any, the Board had failed to observe such standards of fairness, or any errors of law or procedural unfairness or irrationality in the decision of the Board and/or the Director.

Disposition

27.  For the above reasons, there is no prospect of success in the intended application for judicial review.  The appeal is without merits. We therefore dismiss the appeal.