RE ISLAM MD SHORIFUL

CACV 14/2019

[2019] HKCA 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 14 OF 2019

(ON APPEAL FROM HCAL 602 OF 2018)

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J U D G M E N T

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Hon Au JA (giving judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) set out in the Form Call-1 dated 9 January 2019 (“the Deputy Judge’s Decision”) [2019] HKCFI 29, refusing leave to apply for judicial review.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 23 February 2018 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 31 August 2016 (“the Director’s First Decision”) and 27 June 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Bangladesh.  He left Bangladesh for Mainland China on 23 February 2016.  He sought to enter Hong Kong illegally by boat on 9 March 2016 and was arrested by the police in Hong Kong on the same date for being a suspected illegal immigrant.  He lodged a non-refoulement claim on 12 March 2016.

3.  The details of the applicant’s claim and his personal background were set out in paragraphs 5 - 14 of the Director’s First Decision, and paragraph 15 of the Board’s Decision.

4.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by the members of Awami League (“AL”), in particular one MD Enamul and his associates, because he is a supporter of the Bangladeshi Nationalists Party (“BNP”) and refused to join AL.  The applicant claimed that he has joined and assisted in promoting the BNP since 1993.  In 2004, he worked as a driver in Panti.  In around April 2009, he was threatened by members of AL that unless he joined the AL, he would no longer drive or stay in Panti.  He left Panti after the incident but returned in around 2015.  Since his return, he had been encountering troubles with members of AL before his departure in 2016.

The Director and the Board’s Decisions

5.  By the Director’s First Decision and the Director’s Second Decision (collectively, “the Director’s Decisions”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3]. The Director’s Second Decision assessed the BOR 2 risk^[4].

6.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 18 December 2017 and 15 January 2018 respectively, during which the applicant answered questions raised by the Board.  After hearing the applicant and having considered the materials before it, 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.

7.  Although the Board attached credence to the facts that the AL and BNP are opposition parties and their members involve in personal rivalry, the Board refused to accept the applicant’s version of events due to the lack of credibility on the applicant’s account (paragraph 63 of the Board’s Decision).  The Board concluded that neither the applicant nor his family members were members of BNP and thus there would not be any real risk of harm on the basis of the alleged BNP memberships.  In any event, there was no credible information for the Board to conclude that Bangladeshi nationals are targeted for harm because they voted for BNP (paragraph 66 of the Board’s Decision).  Thus, the Board dismissed his appeal.

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 10 April 2018 seeking leave to apply for judicial review against the Board’s Decision.  He also filed a supporting affirmation on the same day.  His grounds for judicial review were succinctly summarized by the Deputy Judge at paragraphs 24 - 28 of the Deputy Judge’s Decision:

“24. In Form 86 and his affirmation, the Applicant complained the Adjudicator unlawfully fettered her 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.

25. The Applicant accused the Adjudicator misdirected herself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (‘COI’); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Bangladesh a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.

26. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation.

27. The Applicant also 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. He complained the Adjudicator failed to make appropriate arrangement.

28.   Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director decided on BOR2 risk without screening.”

9.  The Deputy Judge heard the applicant’s leave application on 18 July 2018.  At the hearing, the applicant confirmed that the grounds for judicial review were as stated in Form 86 and his supporting affirmation, and had nothing to add.

10.  Having considered the documents, the Deputy Judge concluded that the intended judicial review had no reasonably arguable grounds, and refused to grant leave.  He set out his detailed reasons in paragraphs 32 - 47 of the Deputy Judge’s Decision:

“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’. 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.’

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 27 June 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 31 August 2016, 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 failed to provide particulars in this regard.

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 31 August 2016.

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. 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 while 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 served on the Applicant on 12 December 2017. That was 6 calendar days (or 5 working days) prior to the Board hearing scheduled for 18 December 2017. Thus, the bundle was served on the Applicant in time. Furthermore, the Applicant claimed to be sick during the course of the interview that day. The appeal hearing was adjourned to 15 January 2018. That would give the Applicant extra time to prepare further for the appeal hearing if he really so wanted. The Applicant had not complained to the Adjudicator about lack of time for preparation.

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.   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.

44.   The Adjudicator complained the Adjudicator had not considered the issues of state protection and state acquiescence. He also complained the Adjudicator failed 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. These were actually not real issues for consideration since the Adjudicator disbelieved the Applicant's claim and found the Applicant failed to establish any risk which warranted non-refoulement protection.

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

46.   There was also no evidence the Adjudicator misdirected herself in law or applied the wrong standard of proof.

47.   I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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. She 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.”

Grounds for appeal

11.  The applicant filed the Notice of Appeal dated 14 January 2019 to appeal the Deputy Judge’s Decision.  He advanced his grounds of appeal as follows:

“the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not official 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.”

12.  Apart from the mere repetition of his claim in the Notice of Appeal, the applicant did not identify any errors in the Deputy Judge’s Decision.

Discussion

13.  At this hearing, the applicant confirms that other than what have already been set out in his Notice of Appeal and related papers filed, as well as the skeleton submission, he has nothing to add in support of this appeal.

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.

15.  Firstly, 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 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.  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.  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 the procedural or other public law errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.  However, as mentioned above, the applicant failed to identify any errors in the Deputy Judge’s Decision.  The grounds advanced by the applicant in the Notice of Appeal are against the Board’s Decision, which were properly addressed by the Deputy Judge in his reasons.  These are no viable grounds of appeal.

19.  In his skeleton argument dated 26 March 2019, the applicant quoted some passages from ST v Director of Immigration [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289 on the “high standards of fairness” required of a decision-maker in the determination of a non‑refoulement claim.

20.  These authorities do not assist the applicant in this appeal.  The learned Deputy Judge has specifically reminded himself and applied the principle in reviewing the Board’s Decision (see in particular paragraph 47 of the Deputy Judge’s Decision).  However, as mentioned above, the applicant has simply failed to identify anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.

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

Disposition

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