RE MIA RAJU

CACV 305/2018

[2018] HKCA 971

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 305 OF 2018

(ON APPEAL FROM HCAL 632/2017)

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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 3 July 2018 in HCAL 632/2017 refusing leave to the applicant to apply for judicial review. 

2.  Because of the applicant’s non-compliance with the direction for lodging skeleton submissions 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.  The applicant was notified of this consequence by a letter from the court dated 3 September 2018, in which he was notified of the direction given.  This appeal is therefore 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 Hong Kong illegally on 22 October 2013 and was arrested the same day. On 25 October 2013, he raised a non-refoulement claim.  His claim was based on his fear of being harmed, or even killed, by the members of Bangladesh Nationalist Party (“BNP”) because of his political affiliation to the rival political group Awami League (“AL”).

4.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1406.  We shall not repeat the same here.

5.  By a Notice of Decision dated 29 December 2015, 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 20 January 2017, 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 decisions.  After an oral hearing on 26 July 2017, the Board dismissed the appeal on 15 September 2017.  The Board found that the applicant’s account of events that someone had thrown a bomb into his house, his futile attempt to locate his family and his running away from his village were illogical and implausible and there was no merit in his case.  Apart from the applicant’s lack of credibility, the Board considered that 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 under all applicable grounds.

The Judge’s decision

7.  The intended application for judicial review was in respect of the decision of the Board.  The Form 86 filed on 18 September 2017 did not contain any grounds for seeking relief.  In the supporting affirmation, the applicant set out the following grounds for judicial review:

(1)   Failing to make sufficient and proper inquiry into the Country of Origin Information (“COI”).

(2)   Failing to take into account and put sufficient weight on the relevant COI; cherry picked and put weight on COI which was of little or no relevance to the applicant’s case.

(3)   Failing to evaluate and make a finding if a consistent pattern of gross, flagrant or mass violations of human rights existed in Bangladesh.

(4)   Failing to assess if state protection exists in Bangladesh.

(5)   Making irrational decision by taking into account irrelevant considerations and failed to take into account on facts and inferences that were favourable to the applicant.

(6)   Failing to call for psychological and psychiatric reports of the applicant.

(7)   Applying incorrect standard of proof in making decision.

(8)   There was a lack of legal representation.

(9)   Failing to arrange an oral hearing for the applicant.

8.  On 3 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 [12] – [19] for her refusal to grant leave:

“Leave to apply for judicial review

12. I have considered with rigorous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

13. There are nine grounds in this affirmation and all contain no particulars. The ninth ground is struck out because it submits the adjudicator failed to arrange an oral appeal hearing when the opposite is true. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

14. In grounds 1, 2, and 4 it is submitted the adjudicator failed to consider relevant and up‑to‑date COI research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did consider COI despite his finding the applicant not credible. He considered information that was up-to-date, relevant and objective in determining state protection availability. These grounds are not arguable.

15. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint. There is no merit in this ground.

16. The applicant also 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.

17. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 20 January 2017 which was long before the oral appeal hearing of 26 July 2017.

18. 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.

19.    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

9.  The Notice of Appeal was filed on 10 July 2018. In the supporting affirmation filed on the same day, he advanced the following grounds of appeal:

“The grounds of my application are as follows: -

The Honourable Deputy High Court Judge Madam Woodcock was wrong in law in holding that there was no state acquiescence or involvement.

The Honourable Deputy High Court Judge Madam Woodcock failed to provide detailed reason in support of her decision.”

10.  Exhibit A annexed to the applicant’s supporting affirmation set out various grounds for judicial review against the Director and the Board.  Its contents were almost identical to the applicant’s affirmation filed on 18 September 2017 in support of his leave application before the Judge.  These matters were canvassed at the hearing below and were duly rejected by the Judge.  

Discussion

11.  Ground 1 lacks both particulars and substance.  The Judge found at [14] of the CALL-1 Form that the Board, after due consideration of the relevant and up-to-date COI, came to the justifiable conclusion that state protection was available.  She made no finding concerning state acquiescence, which did not feature in the grounds for judicial review put forward by the applicant.  We do not see any error of law in the Judge’s finding and Ground 1 is not reasonably arguable.

12.  Ground 2 is a bare allegation unsupported by any reason or argument.  As it is apparent from the parts of the judgment set out in paragraph 8 above, this allegation is entirely without merit.  The Judge clearly explained the reasons for her decision in those paragraphs of the CALL-1 Form.

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