RE HOSSAIN SHAMIM

CACV 300/2019

[2019] HKCA 1118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 300 OF 2019

(ON APPEAL FROM HCAL NO 900 OF 2018)

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J U D G M E N T

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Hon Zervos JA (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Josiah Lam (“the Deputy Judge”) dated 18 June 2019, refusing leave to apply for judicial review (“the Deputy Judge’s Decision”).[1] The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 25 April 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 24 May 2017 rejecting the applicant’s non-refoulement claim (“the Director’s Decision”).

Background

2.  The applicant is a national of Bangladesh.  He entered Hong Kong illegally on 29 March 2012 and was arrested by the police on the same day.   He lodged a torture claim on 31 March 2012 which was rejected on 27 July 2012.  He later lodged a non-refoulement claim on 18 March 2014. 

3.  The details of the applicant’s claim and his personal background were set out in the Deputy Judge’s Decision.[2]

4.  Briefly stated, the applicant claimed that if he were to return to Bangladesh, he would be harmed or killed by the members of the Awami League (“AL”) due to his involvement with the Bangladesh National Party (“BNP”).  The applicant claimed that he was elected the chief president of the BNP in his area in around 2007 and was involved in organizing political gatherings for the party.  From 2009 to 2012, the applicant suffered four or five incidents of torture.  He was both physically and verbally abused. Between 2010 to 2012, he was also threatened by the AL members over the telephone, who demanded that he leave the area with his family or resign from his post. He moved to live in other places in 2011 but he was told his enemies were harassing his family members.  He thought that his enemies would eventually catch him and the police would side with them.  The applicant maintained contact with his family and was told by his mother that the AL was still in power and members of the AL were looking for him.

The Director’s Decision and the Board’s Decision

5.  By the Director’s Decision which covered the BOR 3 risk,^[3] the persecution risk,^[4] and the BOR 2 risk,^[5] the Director refused the applicant’s claim. 

6.  The applicant appealed the Director’s Decision to the Board.  The appeal was heard on 23 February 2018, during which the applicant answered questions raised by the Board.  After hearing submissions from the applicant and having considered the material 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.  The Board found that the applicant was not a credible witness.  It rejected the applicant’s version of events and held that his evidence was unreliable and consisted of glaring contradictions.  The only fact established by the applicant was that he is a Bangladeshi male.  He has failed to prove that by this status alone, he would face any risk of harm in Bangladesh.  Consequently, the Board dismissed the applicant’s appeal.

The Deputy Judge’s Decision

8.  The applicant filed a Form 86 on 23 May 2018 seeking leave to apply for judicial review against the Board’s Decision and the Director’s Decision.  The grounds of review were summarized by the Deputy Judge in the following paragraphs of his decision:

“26.     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.

27.  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. He complained the Adjudicator failed to make appropriate arrangement.

28.  The Applicant further complained the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.”

9.  The Deputy Judge heard the applicant’s leave application on 27 August 2018.  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 his reasons for refusing leave in the following paragraphs (footnotes excluded):

“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.  The Applicant mentioned he was not legally represented for the appeal.  He had been represented by the Duty Lawyer Service up to the Director's decision dated 24 May 2017.

35.  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.

36.  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.

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

38.  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.

39.  The Applicant said the Director served the appeal bundle on him on 15 February 2018 before the Board hearing scheduled for 23 February 2018.  That was 8 calendar days prior to the Board hearing. However, there were only 4 working days in that period because of the three days of Lunar New Year Holiday and one Sunday.

40.  Nevertheless, 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.

41.  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.  There was no evidence to support the Applicant’s saying that he could not well prepare his appeal due to shortage of time.

42.  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.

43.  There was no evidence the Adjudicator relied on outdated cases or information not officially recognised or simply hearsay.

44.  The Applicant said he could not submit documents on time to the Board.  His allegation was vague.  He did not say what documents he would like to submit and how relevant they were.  He had no such documents to show the court.  Actually, he told the Adjudicator in the Board hearing that he had no further documents to support his claim.  

45.  The Applicant said the Adjudicator interviewed him for a long time, putting pressure on him and gave him only little time to answer either ‘yes’ or ‘no’.  He could not remember many details of his case during the interview so he was unable to answer the Adjudicator properly.  The Applicant said that accounted for his inconsistencies and caused the Adjudicator not to believe him.

46.  The Adjudicator’s report showed the Adjudicator had made detailed inquiry of the Applicant’s claim.  The Applicant responded to the Adjudicator’s questions and clarified matters raised by the Adjudicator.  The Applicant was not made to answer just ‘yes’ or ‘no’.

47.  The Adjudicator found the Applicant inconsistent not because he was forgetful but that there were many contradictions between his questionnaire submitted to the Director and his oral evidence given in the Board hearing.  The Adjudicator noted the Applicant offered material facts in his oral evidence and those facts were not found in his questionnaire, SCF or interview by the Director.  

48.  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.

Conclusion

49.  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 judicial review.”

Grounds of appeal

10.  The applicant filed the Notice of Appeal dated 2 July 2019 to appeal the Deputy Judge’s Decision.  He advanced the basis of his appeal on the following statement:

“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.”

11.  Apart from merely repeating his claim in the Notice of Appeal, the applicant did not identify any material errors or irregularity in the Deputy Judge’s Decision.

Discussion

12.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524.[6]

13.  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, Country of Origin 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.

14.  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.

15.  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’s decision, 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.  

16.  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, the applicant failed to identify any error 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 for refusing leave.  There are no viable grounds of appeal.

17.  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

18.  For the reasons given above, the applicant’s appeal is devoid of merit. Accordingly, we dismiss the appeal.