MUNSHI HARUNUR RASHID v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

CACV 244/2018

[2018] HKCA 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 244 OF 2018

(ON APPEAL FROM HCAL NO. 1002 OF 2017)

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J U D G M E N T

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

1)   The Appeal

1.1   This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (‘the Judge’) given on 12 June 2018 refusing leave to apply for judicial review. 

1.2   The date for this Court to hear this application is 21 November 2018 at 9:30 a.m. According to the directions given by the Registrar of Civil Appeal and contained in the letter from the High Court to the applicant dated 23 July 2018, the time for lodging his skeleton argument was extended to 24 October 2018.  If he failed to do so by the time, he was deemed to have waived his right to have an oral hearing for this appeal and elected to have this appeal disposed of on paper.  The applicant did not file any written submission. Accordingly, we will deal with this appeal on paper.

2)  Background

2.1   The applicant is a national of Bangladesh who allegedly entered into Hong Kong illegally on 26 February 2014 and was arrested by the police on 2 March 2014. On 5 March 2014, the applicant lodged a non-refoulement claim.  The basis of his claim was that if he were to return to Bangladesh, he would be killed or harmed by supporters of his rival political party.  

2.2   The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2018] HKCFI 1282.  We shall not repeat the same here.

3)  The Director’s Decisions and Further Decision

3.   The Director decided against the applicant’s claim on 27 June 2016.  The decision covered the torture risk, Bill of Rights (‘BOR’) Article 3 (Torture or Inhuman Treatment) risk and persecution risk.  By a Further Decision of 9 August 2017, the Director also assessed BOR Article 2 (Right to life) risk and decided against him.

4)  The Board’s Decision

4.1   The applicant appealed to the Torture Claims Appeal Board (‘the Board’) against the Director’s first decision.  After a hearing held on 4 September 2017, the Board dismissed the appeal on 24 November 2017. 

4.2   The intended judicial review was in respect of the decision of the Board.  In the Form 86, the putative respondent was named as Christian Patrick Carney ESQ who was the Adjudicator of the Board.  The Director was named as the Putative Interested Party.  In the Notice of Appeal, the applicant named the Board and Director as defendants.  Hence the description of the parties to this appeal should properly be the Board as the 1^st respondent and the Director as the 2^nd respondent.

4.3   The Form 86 filed by the applicant on 4 December 2017 did not contain any grounds for judicial review.  These were instead deposed to in the applicant’s affirmation filed on the same day, in which he set out the following grounds for judicial review which were summarised by the Judge in [13] of CALL‑1 Form as follows :

(1)   procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into Country of Origin, Information (‘COI’) in the consideration of his claim;

(2)   irrationality in the adjudicator’s failure to place proper weight in the relevant COI and being selective in his reliance of COI in the consideration of his claim;

(3)   irrationality in the adjudicator’s failure to evaluate and make finding of facts of a consistent pattern of gross and flagrant violation of human rights in Bangladesh;

(4)   irrationality in the adjudicator’s failure to analyze and assess whether state protection exist in Bangladesh;

(5)   irrationality in the Board taking into account and putting weight in irrelevant or inaccurate consideration of his claim;

(6)   procedural impropriety for failing to call for psychological or psychiatric evaluation or reports;

(7)   procedural impropriety/unfairness for the adjudicator to apply the incorrect standard of proof in his decision; and

(8)   procedural impropriety/unfairness in that failures at first instance on the part of his assigned duty lawyer resulted in lack of or insufficient legal representation for the applicant.

5)  The Judge’s decision

5.   The application for leave to apply for judicial review was heard on 16 April 2018. After summarizing the background of the case and giving consideration to the decisions of the Director and the Board, the Judge rejected the application on its merits giving his reasons at [14] to [18] of the CALL-1 form in which he addressed the grounds put forward by the applicant :

‘ 14. These are all very broad and vague assertions of the applicant containing several pages of key words/phrases but without any particulars or specifics or elaboration, and it is not clear how they applied to his case or how the Board or the adjudicator had erred in the decision.

15.   Given the fact that the applicant’s claim was rejected essentially on his credibility, and for the clear and obvious reasons as noted above, any attempts by him to criticize the Board in its use or reliance of COI in the assessment of the situations in Bangladesh would in my judgment be futile and pointless, while his complaint of the Board for not calling any psychological or psychiatric evaluation is as pointed out by the adjudicator unsupported by any medical reason or evidence, nor is there any basis for his challenge over the correct standard of proof used by the Board in assessing his credibility as the adjudicator did clearly and correctly apply the correct tests as explained in paragraphs 33 – 53 of the Board’s decision.

16.   I should also note that in his supporting affirmation the applicant also complained of being given the hearing bundle of documents all in English only a few days before his appeal hearing before the Board, in which he should in fact be well familiar with most of the documents which comprised of his NCF, records of his screening interviews and the earlier decision of the Director all of which were already provided to him when he still had legal representation, and that in any event he never raised any issue about it at the hearing before the Board during which he in fact turned down the adjudicator’s offer to give him a further hearing.

17.   In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

18.   For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.’

6)  The Appeal

6.1   The applicant filed the Notice of Appeal on 20 June 2018 in which he provided the following ground of appeal :

‘ ...... the Plaintiff [applicant] 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.’

6.2   In an appeal, this Court focuses on examining the correctness of the Judge’s refusal of leave in light of the grounds of appeal advanced by the applicant in the notice of appeal, see: Re Shrestha Santosh Kumar [2018] HKCA 583. If no viable ground is put forward to reverse the Judge’s decision, 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.  The Judge had addressed this specific ground of appeal in paragraph 15 of his decision.  We see no merit in this ground of appeal as it does not identify any error in the Judge’s decision and thus the appeal plainly has no prospect of success.  

7)  Disposition

7.   There is no prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.