Re Zahangir Mohammad

CACV 327/2018

[2018] HKCA 721

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 327 OF 2018

(ON APPEAL FROM HCAL 695 OF 2017)

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Before: Hon Yuen and Barma JA in Court

Date of Hearing: 12 October 2018

Date of Handing Down Judgment: 22 October 2018

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J U D G M E N T

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

1.This is an appeal against the decision of Deputy High Court Judge Woodcock given on 10 July 2018 refusing leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office dated 26 September 2016 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 26 April 2016 and 30 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 16 June 2014 illegally and was arrested by the police on the same day.  After his arrest, he lodged a non-refoulement claim on 21 June 2014.

3.The applicant’s claim was based on threats from an opposing political party.  The details of the applicant’s claim have been summarised by the judge at [2] to [5] of the CALL-1 Form.

4.By a Notice of Decision dated 26 April 2016 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.By a Notice of Further Decision dated 30 June 2017, the Director also assessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 25 July 2017, at which it considered both Decisions of the Director, the Board dismissed the appeal on 26 September 2016 (“Board’s Decision”).

7.At [25] of the Board’s Decision, the Board found that the applicant’s case is not credible.  Furthermore, at [32] it held that there is no evidence to show that the assailants were officials or acting in official capacity.  The Board was also satisfied at [59] that state protection would be available for the applicant and at [64] that internal relocation would be viable.

The deputy judge’s decision

8.The applicant filed a form 86 on 29 September 2017 which contained no ground for seeking relief. 

9.In the affirmation in support of the leave application dated the same day, the applicant advanced various grounds for judicial review which are summarised below:

(i) both the Director and the Board failed to give the applicant (who was acting in person) an opportunity to explain any discrepancies before making a finding against him on credibility;

(ii) the Board cherry-picked Country of Origin Information;

(iii) the Director and the Board failed to consider the concept of extended state acquiescence; and

(iv) the Director and the Board acted unreasonably in a) assessing the applicant’s claim on false logic regarding the intention of the assailants and b) the enmity arose from his political view so it was not a private dispute.

10.After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [10] to [15] of the CALL-1 Form:

“10. I have considered with rigourous examination and anxious scrutiny the papers, grounds of this application and the applicant’s submissions. I find both the decision-makers’ decisions to be without fault. In the applicant’s supporting affirmation there are grounds directed at both the Director and the adjudicator however, there are no particulars in any of the grounds. I find no substance in the grounds of this application.

11. The grounds are not so clear or coherent but from what I can summarise, in ground 1, he submits both decision-makers failed to give him an opportunity to explain any discrepancies before making a finding against him on credibility, bearing in mind he was acting in person. Firstly, the applicant was not acting in person before the Director; he was legally represented through the duty lawyer scheme. Secondly, the adjudicator did give him opportunities to explain discrepancies and that is reflected in her decision. There is no merit in this ground.

12. In ground 2 against the adjudicator of the TCAB only, she failed to properly consider and fairly deal with COI information. There are no particulars to support this ground. There is no merit in this ground.

13. In ground 3 against both decision-makers they are accused of irrationality; a failure to consider the extended concept of State acquiescence. The applicant did not rely on the concept of extended state acquiescence. He did not make a report to the police or any authority. In any event, there is no evidence that this is a case where state authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons. There are no merits in this ground.

14. In the fourth ground against both decision-makers they are accused of unreasonableness; the assessment of his claim under all applicable grounds ‘was premised on false logic regarding the intention’ of his enemies. I have tried my best to decipher this ground but without particulars I am unable to work out the accusation of unreasonableness.

15. I have tried my best to decipher all the grounds in the applicant’s affirmation and I do not find any that show there was an error of law made by the adjudicator or the Director.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.”

Grounds for appeal

11.In the Notice of Appeal dated 20 July 2018 the applicant raised a single ground of appeal in these terms: “There is an appeal for the decision of legal aid and would like the case to be against will that is over”.

12.In his skeleton submissions dated 14 September 2018, the applicant essentially repeated the grounds for judicial review in the affirmation dated 29 September 2017.

13.The applicant agreed by a letter of 20 July 2018 that the appeal could be heard by two judges.  We heard the appeal on 12 October 2018.

Discussion

14.The applicant has failed to show how any legal aid application he may have made is relevant to the merits of his application for judicial review.  It does not appear in this court’s records that any application for legal aid has been made in connection with this appeal.  It appears from the court file for the hearing below that there was an unsuccessful application for legal aid at that stage.  Be that as it may, it is not the practice of this court to delay the hearing of an appeal to await the outcome of a legal aid application or appeal against refusal of legal aid where a previous application in the course of the proceedings below has been unsuccessful.  There is no reason to depart from this practice here.  This ground of appeal is clearly unmeritorious. 

15.As for the matters raised in his skeleton, those are directed at the alleged errors of the Director and the Board.  They do not point to any error in the judge’s decision.  The judge has already dismissed those grounds after careful consideration in her decision.  They are therefore not viable grounds of appeal.

16.There is thus no merit in the appeal and we dismiss the appeal accordingly.

The applicant acting in person