Re Mohammad Rayhan Uddin

CACV 384/2018

[2018] HKCA 944

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 384 OF 2018

(ON APPEAL FROM HCAL NO 755 OF 2017)

_________________

_________________

_________________

JUDGMENT

_________________

Hon Fung J (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Woodcock given on 31 July 2018 (published as [2018] HKCFI 1727) refusing him leave to apply for judicial review. The intended judicial review is against the decision of the adjudicator of the Non-refoulement Claims Petition Office/Torture Claims Appeal Board (“the Board”) dated 3 October 2017 dismissing the applicant’s appeal/petition against the decision of the Director of Immigration (“the Director”) dated 19 April 2017 rejecting his non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He allegedly arrived in Hong Kong on 10 April 2014 and was arrested by the police on the same date.  He raised his claim for non-refoulement protection on 12 April 2014. 

3.His claim was based on the fear that, if he returned to Bangladesh, he would be ill-treated by the members of the Awami League because of his political affiliation with their rival the Bangladesh Nationalist Party.  The factual background of this case was summarized in [3]–[8] of the judge’s decision, and we do not propose to repeat it here.

4.The Director assessed the applicant’s claim on all applicable grounds, namely the BOR 3 risk,[1] the BOR 2 risk,[2] the persecution risk[3] and the torture risk,[4] and determined the risks against the applicant.

5.The applicant lodged an appeal/petition with the Board.  After holding an oral hearing on 14 September 2017, the Board considered that the applicant’s evidence was inconsistent and implausible. As a result, the Board rejected the applicant’s case in its entirety and concluded that the applicant had fabricated his claim in order to remain in Hong Kong. Accordingly, the Board dismissed the applicant’s appeal/petition and confirmed the decision of the Director.

The judge’s decision

6.The applicant filed his Form 86 on 11 October 2017, seeking leave to apply for judicial review against the Board’s decision. The applicant advanced the following grounds for seeking relief in the annexure to his Form 86:

(1)   The Board had unlawfully fettered its discretion by refusing the applicant’s appeal;

(2)   The adjudicator acted in a manner that was procedurally unfair;

(3)   The Board’s decisions to refuse the applicant’s appeal were unreasonable or irrational in the public law sense, and there were procedural errors or unfairness; and

(4)   The Board failed to meet the greater care and duty owed to the applicant.

7.Three further grounds were submitted in the annexure:

(a)   He was only given the hearing bundle for use at the hearing before the board six days prior to the hearing, rendering him insufficient time to prepare for, and being confused at, the hearing;

(b)   He answered all the questions honestly and was aggravated by the adverse finding on his credibility;

(c)   The Board relied on the source of news which was not officially recognized or was simply hearsay.  It also relied on cases which were outdated considering the dramatic change in Bangladesh.

8.The applicant also filed an affirmation in support of his leave application.  He basically repeated therein what was stated in the annexure to his Form 86.

9.After having an oral hearing on 13 March 2018, the judge refused to grant leave for the applicant to apply for judicial review.  The reasons in refusing leave were set out in [16]–[21] of her decision:

“16. I have considered with [rigorous] examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. The adjudicator analysed the material, claim and evidence and validated his findings. The applicant’s complaints against him and the procedure undertaken are not made out. He puts forward three grounds and I find them all to be without merit and substance.

17. In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated. This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings. However, there is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle. Moreover, he made this application and affirmation in English which casts more doubt on this ground. I find no merit in this ground.

18. In the applicant’s second ground he 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 reasons for that finding; he 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.

19. The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date. However, there are no particulars supplied by the applicant to support this ground. What information he did consider relevant in spite of his finding against the applicant’s credibility, was clearly relevant, up-to-date and objective. I find no merit in this ground.

20. 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.

21. 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

10.The applicant filed his notice of appeal on 13 August 2018.  In the notice of appeal, the applicant stated that:

“… the Plaintiff will face hardship if he is to return back 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)

11.In compliance with the directions of the court, the applicant lodged his written submissions on 2 November 2018.  In it, the applicant submitted that high standards of fairness are required in determination of torture claims.

12.We heard the appeal on 6 December 2018.

General principles

13.For the purpose of this appeal, we would highlight the following salient propositions concerning appeal in non-refoulement cases:

(1)   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 the 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.

(2)   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 or for running arguments which could and should have been raised but were not raised before 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.

(3)   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.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.In the present case, the Board found that the applicant had fabricated his claim for non-refoulement protection in order to remain in Hong Kong.  There was minute examination of the applicant’s allegations at the oral hearing before the Board, with instances such as the new claim of the disappearance of his father, new additions to his previous statement, implausibility of the role of his alleged aggressor in the Student Wing of BNP.  The course undertaken by the Board demonstrated a thorough assessment of the claim to the very high standard of fairness.  The Board had also looked at the COI materials of organizations of high international standing, and also found no actual harm inflicted on the applicant.  After rigorous examination and anxious scrutiny, the judge did not find any legal error or procedural unfairness in the proceedings before the Board.  Nor is there any reasonably arguable basis to challenge the Board’s findings.

15.By submitting that he will face hardship if he were to return to his home country, the applicant is in effect inviting this court to revisit the assessment made by the Board. As we have explained, this is not a permissible course on appeal.

16.Plainly, the applicant fails to advance any effective argument that justifies a reversal of the judge’s decision. 

17.Having considered the materials available before us, as well as the submissions of the applicant, we neither find any errors of law or procedure in the proceedings before the Board, nor any reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

18.For these reasons, we dismiss the appeal accordingly.

The applicant acting in person