Re Faruk Md

CACV 252/2018

[2018] HKCA 693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 252 OF 2018

(ON APPEAL FROM HCAL 1110/2017)

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JUDGMENT

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

Introduction

1.This is the applicant’s appeal from the decision of Deputy High Court Judge Josiah Lam dated 12 June 2018 refusing leave to apply for judicial review. 

2.Because of the non-compliance with an unless order, this appeal (which was originally listed to be heard on 13 September 2018) is processed on the papers based on 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. 

Background

3.The applicant is a Bangladeshi national.  He entered Hong Kong illegally from the Mainland China on 17 July 2014.  He was arrested by the police on the same date.  He lodged his claim for non-refoulement protection on 20 July 2014.  His claim was based on the fear that, if he returned to Bangladesh, he would be harmed or mentally tortured by the members of Awami League (“AW”).

4.The background facts are sufficiently set out by the judge in the CALL-1 Form at [2018] HKCFI 1256.  We shall not repeat the same here.

5.By a notice of decision dated 20 June 2016, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim.  The BOR 3 risk[1], the persecution risk[2], and the torture risk[3] were covered in this decision.  The Director also assessed the applicant’s claim based on the BOR 2 risk[4].  By the notice of further decision dated 17 August 2017, the director determined it against the applicant.

6.The applicant appealed to the Torture Claims Appeal Board (“the Board”).  An oral hearing was held on 3 October 2017, and the applicant testified in the hearing.  The Board did not believe the applicant’s evidence.  The Board concluded that the applicant’s fear was not well-founded and various protection was available and relocation opportunities were viable to him if he returned to Bangladesh.  The Board dismissed the appeal on 17 November 2017.

The judge’s decision

7.On 20 December 2017, the applicant applied to the court for leave to apply for judicial review.  The intended application for judicial review was against the decision of the Board.  The applicant advanced the following grounds for seeking relief in his form 86:

“ (1) The [Board] had unlawfully fettered [its] discretion by refusing the Applicant’s appeal on the grounds that they (sic) did not satisfy the requirement;

(2) The [Board] acted in procedural unfair manner in dealing with the Applicant’s appeal;

(3) The [Board]’s decision to refuse the Applicant’s appeal was unreasonable and irrational in the public law sense, or are a result of procedural errors or unfairness; and

(4)     The [Board] failed to meeting the greater care and duty owed to a self-represented claimant.”

8.In his supporting affirmation made on 20 December 2017, the applicant advanced the following two further grounds for seeking relief:

(a) The hearing bundle for use at the hearing before the Board was only given to him 8 days prior to the hearing, and the documents were all written in English, rendering him insufficient time to prepare for the hearing; and

(b) The Board had relied on the source of news which was not officially recognized or it was simply hearsay.  Some cases it relied upon were outdated considering the dramatic changes (sic).

9.After a hearing on 17 May 2018, the judge refused to grant leave to the applicant to apply for judicial review.  The judge’s reasons in refusing leave to judicial review were set out in [27] to [37] of the CALL-1 form:

“ 27. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

28. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.

29. The Applicant complained that he received the appeal bundle including the Director’s skeleton submission only a short time before the appeal hearing.

30. 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.

31. The Director in his letter dated 31 May 2018 confirmed that the Applicant received the appeal bundle on 25 September 2017 (Mon). The hearing before the Adjudicator was scheduled on 3 October 2017 (Tue). The bundle was served 8 calendar days (or 6 working days) prior to the date of the hearing. It was on time.

32. The Applicant complained he did not have enough time to get someone to translate/interpret the documents for him.

33. The Applicant had a friend to help him to prepare Form 86 and the affirmation for the current application. I am sure the Applicant could always find someone to provide him language assistance. The Applicant had exaggerated his language assistance problem.

34. The Director also pointed out in his letter that the appeal bundle consisted mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of his claim.

35. A few days’ time certainly was not a long period. However, the Applicant's case was not difficult and there was no evidence to show the appeal bundle was difficult or voluminous. A few days could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show this court that he really needed more time for preparation. There is no evidence to show he had so complained to the Adjudicator or asked for adjournment during the appeal hearing. There is also no evidence to show the Applicant was confused as to what happened in the appeal before the Adjudicator.

36. The other complaints raised by the Applicant are vague. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I find none of the Applicant’s complaints can stand.

37. In my judgement, the Adjudicator had proper basis for her findings, conclusions and decisions which were not Wednesbury unreasonable.  She 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’s report showed she was acquainted with the facts of the Applicant's case.  She considered the Applicant’s claim carefully and applied the law correctly.  The Adjudicator was entitled to render those findings, conclusions and decisions which were all reasonable.  She had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.”

The appeal

10.The applicant filed his notice of appeal on 21 June 2018.  In the notice of appeal, the applicant stated that:

“ … the Plaintiff 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.” (sic).

Discussion

11.Before we address this ground of appeal, we reiterate the following general propositions:

(a) 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 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.

(b) An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of 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 made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(c) It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(d) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(e) 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 this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

12.In the present case, the Board rejected the applicant’s claim based on credibility and lack of substantial risk.  It also found that state protection was available and internal relocation was viable to the applicant when he returned to Bangladesh.  The judge, after rigorous examination and anxious scrutiny, found that none of the applicant’s grounds for seeking relief could arguably be sustained. 

13.In the appeal, the applicant did not advance any effective argument against the analysis of the judge.  He did not pinpoint any particular aspect of the COI which was relied upon by the Board that was allegedly out-dated or incorrect.  He did not put forward more up-dated COI before the Board.  Having considered the materials available before us, we cannot find any error in the judge’s analysis.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

14.Therefore, the appeal is dismissed. 

The applicant acting in person