RE LITOUN MOUNSY (also known as AKMAL ALI and also known as SHAMEN HOSAIN)

CACV 212/2018

[2018] HKCA 537

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2018

(ON APPEAL FROM HCAL NO 1112/2017)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam of 5 June 2018 refusing leave to the applicant to apply for judicial review.

2.  The applicant is a national of Bangladesh.  According to the records of the Immigration Department, the applicant had previously entered Hong Kong by using passports under different identities (of Akmal Ali in 2002-2003 and of Shamen Hosain in 2005-2006).  He had been found to be in breach of condition of stay by taking up unapproved employment, and was deported back to Bangladesh in April 2003 and March 2006 respectively. 

3.  The applicant entered Hong Kong again by using a passport under the current identity of Litoun Mounsy in November 2006.  Between November 2006 and June 2007, he travelled between Hong Kong and the Mainland on a number of occasions, to Nepal on two occasions, and returned to Bangladesh three times in December 2006, April 2007, and June 2007.  On 30 May 2013. He left Bangladesh for the Mainland; and on 8 July 2013, he entered Hong Kong illegally.  He was arrested by the police on 31 July 2013. He lodged a claim with the Director of Immigration for non-refoulement protection on 19 September 2013.

4.  By a notice of decision dated 23 June 2017, the director rejected the applicant’s non-refoulement claim.  The director’s decision covered the BOR 3 risk[1], the BOR 2 risk[2], the persecution risk[3], and the torture risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 6 December 2017.  Having considered the applicant’s travel history, his use of passports under false names, the delay in making non-refoulement claim, the lack of credibility of the documents provided by the applicant, and the inconsistencies in his evidence, the board found the applicant had fabricated his claim for non-refoulement protection.  The board rejected the applicant’s claim in its entirety, and dismissed the appeal on 8 December 2017.

The decision of the deputy judge

6.  On 20 December 2017, the applicant applied to the court for leave to apply for judicial review against the board’s decision.  In his form 86, as well as in his supporting affirmation both dated 20 December 2017, the applicant complained that:

(a)   the hearing bundle for use at the oral hearing before the board was only given to him 8 days prior to the hearing, giving him insufficient time to prepare for the hearing; and

(b)   The board relied on source of news that was not officially recognized or was simply hearsay.  It also relied on cases which were outdated.

7.  The deputy judge heard the application on 23 May 2018 and refused to grant leave to apply for judicial review on 5 June 2018.  After summarizing the background of the case and having due regard to the decisions of the director and the board, the deputy judge gave the following reasons in refusing leave to judicial review in paragraphs 38 to 46 of the CALL-1 form:

“ Discussion

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

39. 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’.

40. Despite being a university graduate in Bangladesh, the Applicant said he did not know much English. Nevertheless, he was able to get someone to prepare Form 86 and the affirmation for his current application for judicial review. I am sure the Applicant could get language assistance at all material times. I find he had much exaggerated his language problem.

41. The Applicant complained he only had about 8 days to prepare for the appeal before the Board. Even if his allegation was true, there is no evidence to show that was not enough for his preparing for the appeal before the Board. There is no evidence to show the Applicant had expressed such dissatisfaction to the Adjudicator or for that reason applied for adjournment in the Board hearing. Paragraph 16 the Adjudicator’s report reveals he asked for time but only for the purpose of submitting documents. The Adjudicator made enquiry and learnt that those documents were allegedly issued in 2013. He was of the view that the Applicant had had more than enough time to get hold of the alleged documents if he would like to rely on them. The Adjudicator refused to adjourn the hearing.

42. The Adjudicator was entitled to refuse that adjournment request, which had nothing to do with the Applicant's present complaint that he was only given the appeal bundle several days before the hearing.

43. The Applicant said he was confused during the appeal hearing. However, the Adjudicator’s report shows the Applicant was fully aware of what was going on. He responded to the Adjudicator and expressed his own wish. I am sure the Applicant had prepared well for the appeal and he was not confused at all during that appeal hearing.

44. The other complaints raised by the Applicant are vague. He could not be specific in court. Nevertheless, I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator was alive to the issues of the Applicant's claim. He had engaged in joint endeavour with the Applicant in the screening inquiry. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts and the law. He considered the Applicant's case carefully and applied the law correctly. He gave balanced consideration to relevant facts and COI. The Adjudicator was entitled to render those findings, conclusions and decisions which were not Wednesbury unreasonable. He had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

45. The Director is an interested party in the current application. I have also reviewed his findings, conclusions and decisions under ‘rigorous examination and anxious scrutiny’. I am satisfied they were not Wednesbury unreasonable. The Director made no errors of law and there was no procedural unfairness. What has been said of the Adjudicator in paragraph 44 above is also true of the Director. The Director had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

46.   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

8.  The applicant filed his notice of appeal on 11 June 2018.  In the notice of appeal, the applicant stated that:

“ … the Plaintiff will face hardship if he is to return to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

9.  In compliance with the directions of the court, the applicant lodged his written submissions on 3 August 2018.  In his written submissions, the applicant referred to ST v Betty Kwan [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 and submitted that high standards of fairness are required in determination of torture claims.

10.  We heard the appeal on 17 August 2018.

Discussion

11.  Before we addressed the grounds of appeal, it is necessary to highlight the following general propositions:

(a)   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 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, see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(b)   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. 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, 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.

(c)   It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited. In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194. 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, see Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(d)   Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(e)   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.

12.  In the present case, the judge, after rigorous scrutiny, found no reasonably arguable basis to challenge the findings of the Board.

13.  In the appeal, the applicant did not advance any arguments against the analysis by the judge. 

14.  In substance, he is trying to argue the matter afresh and his arguments were general assertions against the Board.  As stated above, this is not a course open to an applicant on appeal.

15.  Having considered the materials available before us, as well as the submissions of the applicant, we cannot find any basis for holding that the judge was in error in refusing to grant leave.

16.  For these reasons, we dismiss the appeal.