RE AHMED FARUQUE

CACV 478/2018

[2019] HKCA 988

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 478 OF 2018

(ON APPEAL FROM HCAL 2 OF 2018)

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J U D G M E N T

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Hon Au JA (giving the judgment of the court):

1.  This is the appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) as set out in the Form CALL‑1 dated 14 September 2018 refusing him leave to apply for judicial review (“the Deputy Judge’s Decision”) [2018] HKCFI 2047.  The intended judicial review is against the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (“the Board”) dated 29 December 2017 (“the Board’s Decision”) dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) respectively dated 23 January 2015 (“the Director’s First Decision”) and 17 May 2017 (“the Director’s Second Decision”) rejecting the applicant’s non-refoulement claim.

2.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

A.   Background

3.  The applicant is a national of Bangladesh.  He first entered Hong Kong illegally on 30 November 2001 and was permitted to remain as a visitor until 14 December 2001.  On 1 February 2002, he was removed to Bangladesh under a removal order.  On 16 October 2006, he entered Hong Kong again illegally and was arrested on 24 October 2006.  He lodged a torture claim under Part VIIC of the Immigration Ordinance (Cap 115) on 2 January 2007 which was eventually dismissed by the Director on 6 August 2013.  His appeal to the Board was adjourned sine die on 16 April 2014.

4.  Upon obtaining legal representation from the Duty Lawyer Service, the applicant lodged a non-refoulement claim on applicable grounds other than torture risk by completing a Supplementary Claim Form (“SCF”) on 27 August 2014.

5.  The details of the applicant’s claim and his personal background were set out in paragraphs 6 - 8 of the Director’s First Decision, and paragraphs 34 - 61 of the Board’s Decision.

6.  Briefly stated, the applicant said he developed a love relationship with a girl named Anjuman Ara (“Polly”) in around 1991.  The applicant however claimed that if he were to return to Bangladesh, he would be harmed or killed by Polly’s brother, Russell Hossain (“Russell”) and Russell’s close friend Jabed.  This was so as Russell knew about their relationship in 1999 and demanded the applicant to stop seeing Polly.  Polly had once told him that Russell threatened to kill the applicant if they continued this relationship.  In June or July 2005, the applicant was punched by Russell on the left cheek but he managed to run away.  Several days later the applicant was again confronted by Russell who proceeded to punch and kick him before the applicant managed to escape and took shelter at his friend’s place.  A few days later, the applicant ran into Jabed, who attacked him with a knife and his forearm was slashed before he was able to run away.  He was informed that Jabed was the root of his problem because Jabed wanted to pursue Polly.

B.   The Director’s Decisions and the Board’s Decision

7.  The Director assessed the BOR3 risk^[1] and the persecution risk^[2] in the Director’s First Decision, and the BOR2 risk^[3] in the Director’s Second Decision.  The Director did not accept that the applicant was a genuine non-refoulement protection seeker and rejected the applicant’s claim.

8.  The applicant appealed the Director’s Decisions to the Board.  The appeal was heard on 7 June 2016, 12 September 2017 and 3 October 2017, 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.

9.  The Board found that the applicant lacked credibility on a number of bases.  First, the applicant had come to Hong Kong using three different identities at different times.  Second, he had behaved dishonestly when he was in Hong Kong in the past occasions.  Third, he gave inconsistent versions of events with regard to his relationship with Polly. The Board found that he invented these events to advance his non‑refoulement claim.  As a result, the Board concluded that the applicant had failed to establish that he would face any real risks if returned to Bangladesh (see paragraphs 84 ‑ 91 of the Board’s Decision).

C.   The Deputy Judge’s Decision

10.  The applicant filed a Form 86 on 2 January 2018 seeking leave to apply for judicial review against the Board’s Decision.  The grounds of review stated in his supporting affirmation filed on the same date were summarized by the Deputy Judge at paragraph 13 of the Deputy Judge’s Decision as follows:

“13. On 2 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up‑to‑date COI in the consideration of his claim;

(2) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

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

(4) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Bangladesh and misdirected herself as to the extended meaning of state protection;

(5) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6) procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.”

11.  The Deputy Judge heard the applicant’s leave application on 17 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 the following reasons in paragraphs 14 - 18 of the Deputy Judge’s Decision:

“14. These are however all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case, or in what way was his legal representation from his assigned lawyer insufficient. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

15. The only other complaint which the applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given insufficient time to prepare for his appeal.

16. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his SCF, record of his screening interview and the Director’s decisions should be well familiar to the applicant as they had already been made available to him earlier when he still had legal representation, whilst his SCF was completed on his own instructions with legal assistance, and that he never raised any issue or requested for further time to enable him to properly prepare for his appeal at his oral hearing to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

17. In the premises and having proceeded to consider 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.”

D.   Grounds for appeal

12.  The applicant filed the Notice of Appeal dated 27 September 2018 to appeal the Deputy Judge’s Decision.  He set out the following two grounds of appeal in his supporting affirmation filed on the same date:

(1)   The Deputy Judge was wrong in law in holding that there was no state acquiescence or involvement (“Ground 1”).

(2)   The Deputy Judge failed to provide detailed reason in support of his decision (“Ground 2”).

13.  The applicant also referred to an exhibit “A”, which elaborated the grounds of appeal.  In exhibit A, the applicant first repeated the background of his claim and cited some conventions and cases.  He then proceeded to list out nine grounds under the heading “Summary of the Grounds of Review Challenging the Adjudicator’s Decision”.  Apart from repeating the eight grounds he advanced before the Deputy Judge, the applicant added one more ground as follows:

“(1) misdirection in law in that the adjudicator misdirected himself on the law by taking into account that the applicant and/or the other applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.”

E.   Discussion

14.  At this hearing, the applicant appeared in person and confirmed that he has nothing further to add to what has already been set out in the Notice of Appeal, his affirmation and the written submissions dated 22 July 2019 filed in support of this appeal.

15.  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.  They can be summarized as follows.

16.  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.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it 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.

17.  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.

18.  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).

19.  In light of the above, it is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s Decision.

20.  Bearing these principles in mind, we now turn to consider the grounds of appeal.

21.  Insofar as Ground 1 is concerned, the Deputy Judge did not in fact make any finding as to the absence or otherwise of state acquiescence or involvement.  He could not have properly done so as he was not tasked to assess whether there was any state acquiescence, which was within the province of the primary decision makers, ie, the Board (after the Director).  Ground 1 is therefore wholly misconceived.  In any event, state acquiescence or involvement was fully considered by the Director who found, to the contrary, that the availability of state protection further lowered the level of risk (paragraph 19 of the Director’s First Decision).  Although the Board dismissed the applicant’s appeal on the sole ground of the applicant’s lack of credibility, it upheld the Director’s Decisions.

22.  The Deputy Judge in his decision had carefully examined the Board’s Decision and the Director’s Decisions and concluded that their decisions did not commit any errors, in that: their decisions did not make any errors of law, were not tainted with any procedural unfairness, and were not Wednesbury unreasonable; and the Director and the Board had also achieved the high standards of fairness required for assessing the applicant’s non-refoulement claim.

23.  Other than making a general and vague complaint that the Deputy Judge was wrong, the applicant has not in this appeal identified specifically what are the errors committed by the Deputy Judge in his reasons.

24.  This is therefore not a valid basis which can show that the Deputy Judge was wrong in any respect in his reasons for refusing the applicant’s application for leave to apply for judicial review.

25.  There is nothing in this ground of appeal.

26.  As to Ground 2, it is clear from the Deputy Judge’s Decision that he has provided sufficiently detailed reasons for his conclusion (paragraphs 14 ‑ 18 of the Deputy Judge’s Decision).  This ground of appeal is also entirely unmeritorious.

27.  In his written submissions dated 22 July 2019, in apparent support of Ground 1, the applicant quoted some passages from ST v Betty Kwan [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.  He further submitted, as an alternative ground, that the Adjudicator (ie, the Board) failed to scrutinize the Director’s Decisions and failed to consider matters such as the country conditions of the applicant’s country of origin.

28.  For Ground 2, the applicant quoted Council of Civil Service Unions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243, and Michael John Treloar Rowse v Secretary for the Civil Service & Others [2008] 5 HKLRD 217 on the decision maker’s “duty to act fairly.”

29.  These however are related to complaints directed at the Director and the Board, which had been properly addressed by the Deputy Judge in his reasons.  As mentioned above, the applicant has not identified anything in this appeal to demonstrate why the Deputy Judge was wrong in his reasons.  These authorities therefore do not assist the applicant in this appeal.

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

31.  With regards to the nine grounds advanced in his supporting affirmation, we also found them to be without merits.

32.  The first ground in relation to misdirection of law was not advanced before the Deputy Judge and cannot therefore be relied upon to demonstrate any errors in the Deputy Judge’s Decision: see Re 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].

33.  As to the remaining eight grounds, they are the same intended grounds of judicial review advanced before the Deputy Judge.  As mentioned above, this appeal is not a venue for the applicant to regurgitate the arguments put forward before the Deputy Judge.  The Deputy Judge had carefully considered the eight grounds and refused them with detailed reasons.  Further, those grounds were expressly stated as against the adjudicator, ie, the Board. They are therefore not viable appeal grounds against the Deputy Judge’s Decision.

F.   Disposition

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