Re Rahman Mohammad Mizanur

CACV 139/2018

[2018] HKCA 457

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 139OF 2018

(ON APPEAL FROM HCAL 913/2017)

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Before: Hon Lam VP, Kwan and Chu JJA in Court

Date of Judgment: 2 August 2018

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan on 27 April 2018 refusing leave to the applicant to apply for judicial review. The applicant is a national of Bangladesh. He entered Hong Kong illegally on 28 November 2013. He was arrested by the police on 2 December 2013. On 4 December 2013, he lodged a claim for non-refoulement protection. His claim is based on the alleged threat from an opposing political party because of the applicant’s political affiliation.

2.The Director decided against the claims on 24 May 2016.  The decision covered BOR 3 risk, persecution risk and torture risk (“the Director’s Decision”).  On 6 June 2016, the applicant appealed to the Torture Claims Appeal Board. 

3.Before the appeal to the Board was heard, by a Further Decision of 31 July 2017, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.  The Board heard the appeal on 5 September 2017 and dismissed the appeal on 3 November 2017 (“the Board’s Decision”).

4.The intended judicial review was in respect of the Board’s Decision only.  The Form 86 filed by the applicant on 20 November 2017 contained the following grounds for judicial review:

(a)  that the Board had unlawfully fettered its discretion by refusing his appeal on the grounds that it did not satisfy the requirement;

(b)  that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(c)  that the Board’s decisions to refuse his appeal were unreasonable or irrational in the public law sense or were the result of procedural errors or unfairness; and

(d)  that the Board failed to apply the high standards of fairness owed to a self-represented claimant.

5.In his affirmation dated 20 November 2017, the applicant relied on the following grounds to support his contention that the Board acted unfairly:

(a)  that the hearing bundle which was all in English was provided to him without giving him sufficient time to prepare for his appeal before the Board,

(b)  that the Board had significantly relied on sources of news not officially recognized or were hearsay or outdated that resulted in its groundless speculation that it would be safe for him to return to his home country.  

6.The judge reviewed the materials carefully. After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, he gave the following reasons in refusing leave at [12] to [17] of the CALL-1 Form of 27 April 2018:

“ 12. According to the applicant the hearing bundle was provided to him by the Director on 29 August 2017 which were only six days before the hearing of his appeal before the Board on 5 September 2017 with an intervening weekend in between, and as the documents were all in English that within such a short time that he was unable to find an interpreter that he could afford, and hence it was procedurally not fair that his appeal was dismissed.

13. Even assuming that he indeed only received the hearing bundle six days before the hearing, the applicant must by then be already well familiar with most of the documents including his non-refoulement claim forms, records of his screening process at the Immigration Department and the decisions of the Director, all of which either were prepared on his behalf or which he has seen before while he was having legal representation from the Duty Lawyer Service.

14. As regard any difficulty he may have getting assistance from interpreter, I note that his Form 86 is in English which he signed without requiring any interpretation, and it is clear that his attendance before the Board was assisted by an interpreter during which he never raised any of the above complaints to the adjudicator for the Board. In the circumstances I do not find anything amiss arising from his complaint over the hearing bundle, nor do I see any merit in such complaint.

15. As for his complaint over the Board’s reliance on unofficial or outdated COI in its assessment of his safe return to Bangladesh, the applicant has failed to put forward any particulars or specifics in support of such assertion, and having examined those listed and relied by both the Director and the Board in their decision, I do not find any basis or merit in this complaint of his either.

16. 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.

17. 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.”

7.In the notice of appeal of 4 May 2018, the applicant said he will face hardship if he returns to Bangladesh.  He also said the Board relied on news which were not officially recognized and some cases which were “fairly outdated”.  Despite the observation of the judge below at [15] of the CALL-1 Form, the applicant did not provide any particulars to support this assertion.

8.Notwithstanding the unless order of 11 June 2018 requiring the applicant to lodge skeleton argument on or before 6 July 2018, no skeleton argument was lodged by the applicant.  Accordingly, the applicant is deemed to have waived his right to an oral hearing: see Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; Re Manjit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; Re SK Sarf Araj [2018] HKCA 307.  The hearing date was vacated and this Court proceeds to process the appeal on the papers.

9.Having considered the applicant’s case in light of the materials before us, we agree with the judge’s observations.

10.The primary decision maker is the Board.  Though the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  See: Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

11.In the Notice of Appeal, the applicant argued that he will face hardship if he returns to Bangladesh but he did not give any particulars.  Further, he did not identify those news and outdated cases which the Board should not have relied on.  In the circumstances, there is nothing to show that the judge or the Board had made any error. 

12.We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process. We agree with the judge that leave to apply for judicial review should not be granted.

13.For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.

The applicant acting in person