RE EUNUCH MOHAMMAD

CACV 325/2018

[2018] HKCA 849

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 325 OF 2018

(ON APPEAL FROM HCAL NO 568 OF 2017)

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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):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock (“the judge”) on 12 July 2018 refusing leave to the applicant to apply for judicial review. 

2.  Due to the non-compliance with an unless order, this appeal (which was originally listed for 7 November 2018) is processed on the papers 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.  This is our judgment.

Background

3.  The applicant is a national of Bangladesh.  He allegedly entered Hong Kong illegally on 19 June 2014, and was arrested by the police on that day.  He lodged a claim for non-refoulement protection on 27 June 2014.  It was based on the fear that, if he was repatriated to his country of origin, he would be harmed or killed by members of the Awami League (“the AW”) because he was the local president of a political rival group, the Bangladesh Nationalist Party (“the BNP”).  The facts of this case were summarized by the judge in paragraphs 3 to 5 of the CALL-1 Form dated 12 July 2018[1], and we do not propose to repeat them here.

4.  The Director of Immigration (“the Director”) decided against the applicant’s claim on 25 April 2016.  The decision covered the BOR 3 risk^[2], the persecution risk^[3] and the torture risk^[4].  By a Notice of Further Decision dated 23 December 2016, the Director also assessed the BOR 2 risk^[5] in respect of the applicant and determined the risk against him.

5.  The applicant appealed to the Torture Claims Appeal Board (“the Board”).  An oral hearing was held on 24 January 2017, during which the applicant elected to give oral evidence. Having considered the political involvement of the party’s activities, as well as his lack of understanding of the BNP’s ideologies and policies, the Board did not accept that the applicant had the leadership role in the party as he claimed.  While the Board accepted that the applicant might have been injured in some inter-party violence in Bangladesh, it did not accept that he was singled out for attention by members of the AW or that he was seriously harmed.  Given the finding of low level political involvement, the Board found the applicant had exaggerated his claim for non-refoulement protection. Furthermore, having considered the relevant country of origin information, the Board also found that, if the applicant were to be subjected to ill-treatments upon return, internal relocation would be a viable option for him.  Accordingly, the Board dismissed the applicant’s appeal on 18 August 2017.

The judge’s decision

6.  On 31 August 2017, the applicant applied to the court for leave to apply for judicial review.  The intended judicial review was in respect of the decision of the Board.  In the Form 86, the applicant referred to his affirmation in support of the application for grounds for seeking relief.  In his affirmation, after setting out the factual background of his case and referring to a number of articles of the International Covenant on Civil and Political Rights and the Hong Kong Bill of Rights Ordinance, the applicant advanced the following grounds for the intended judicial review:

(1) the Board failed to carry out sufficient research and inquiry into the Country of Origin information (“COI”) and failed to have regard to relevant and up-to-date COI research;

(2) the Board cherry-picked COI information and relied on outdated COI;

(3) the Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4) the Board failed to analyse state protection in Bangladesh.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5) the Board took into account incorrect facts and failed to give weight to facts favorable to the applicant.  There were no particulars for this ground;

(6) the Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7) the Board applied an incorrect standard of proof.  There were no particulars for this ground; and

(8) the duty lawyer failed at the first instance to give sufficient legal representation.  There were no particulars for this ground.

7.  The applicant also furnished the following particulars for some of the above grounds for seeking relief:

(1) the hearing bundle with documents all in English was provided to him just a few days before his appeal hearing before the Board and therefore gave him insufficient time to properly prepare for the hearing.  The applicant was confused at the hearing and the Board wrongly concluded he was not credible;

(2) the Board had relied on sources of news not officially recognized or were simply hearsay or outdated in arriving at groundless speculations that it would be safe for him to return to his home country;

(3) the Board made a decision on BOR 2 risk even though this part of the claim was not screened or judged by the Director.

8.  Upon the request of the applicant, oral hearings were held on 24 January and 27 February 2018. After giving due consideration to the decision of the Board, the judge gave the following reasons in refusing leave at paragraphs 12 to 19 of the CALL-1 Form:

“12. I have considered with rigourous 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 her and the procedure undertaken are not made out. I find no substance in the grounds of this application.

13. There are eight grounds in this affirmation and all contain no particulars. 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 Country of Origin (“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 not consider COI because of her finding the applicant was not a genuine claimant. 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 and meticulous 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 23 December 2016 and the date of the appeal hearing was 24 January 2017 with specific reference to that decision of the Director.

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.  On 19 July 2018, the applicant filed a notice of appeal, together with his affirmation in support. In the notice, the applicant referred to his affirmation for the grounds of appeal where he complains that the judge: (1) was wrong in law in holding that there was no state acquiescence or involvement; and (2) failed to provide detailed reason in support of her decision.

10.  In an attached exhibit to his affirmation, the applicant merely repeats the information and grounds in support of his application for leave to apply for judicial review, although he adds a further ground that the Board misdirected itself on the law when assessing the risk of torture in the future.

General principles

11.  Recently, in a number of cases we have highlighted the general propositions for determining an appeal for non-refoulement cases.  See Re Morol Rana [2018] HKCA 617 at paragraph 13; and Re Shrestha Mahesh [2018] HKCA 619 at paragraph 14. 

12.  In summary, a non-refoulement claim is decided by the Director whose decision can go on appeal to the Board.  They are the primary decision-makers whose role it is to assess and determine the merits of the claim.  The role of a court in a judicial review of the Board’s decision is not to provide a further avenue of appeal.  It is not concerned with the merits of the Board’s decision, but rather with the legality of it.  While the court will adopt an enhanced standard in scrutinising non-refoulement claims, it will not usurp the role of the primary decision-makers.

13.  An appeal against the refusal of leave to apply for judicial review of the Board’s decision is not an occasion for repeating arguments advanced and rejected by the court or for running arguments which could and should have been raised before the court but were not.  The Court of Appeal would only examine the decision of the court in light of the grounds advanced by the applicant and will only reverse the decision if it can be demonstrated that the court made errors of law or failed to take account of relevant materials already placed before it or was otherwise plainly wrong.  It is not the role of the Court of Appeal to examine the decision of the Board afresh.

Discussion

14.  In the present case, based on its evaluation of evidence, the Board assessed that the risk of harm to the applicant at the hands of the AW in his village would be very low and that internal relocation was a viable option for the applicant.  As we have already explained, evaluation of evidence is within the province of the Board, with which the court in its judicial review jurisdiction is not likely to interfere.  After having examined and scrutinized the materials before her, the judge did not find any fault in the decision of the Board.

15.  In this appeal, the applicant did not put forth any viable ground to reverse the judge’s decision. There is no basis for suggesting that the judge did not give adequate reasons.  Given the facts of this case and the findings of the Board, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case.  See Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

16.  The applicant’s arguments set out in the exhibit were a regurgitation of the arguments previously advanced, and duly rejected by the judge.  Such repetition of arguments is not a course available to the applicant on appeal.

17.  Having considered the materials before us, we cannot find any ground that justifies a reversal of the judge’s decision.  We agree with the judge that leave to apply for judicial review should be refused.

18.  It follows from what we have said that we dismiss the appeal.