Re Islam Hossain

CACV 361/2018

[2018] HKCA 997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 361 OF 2018

(ON APPEAL FROM HCAL 693/2017)

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JUDGMENT

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

Introduction

1.This is an appeal against the decision of Deputy High Court Judge Woodcock on 18 July 2018 (published as [2018] HKCFI 1582) refusing leave to the applicant to apply for judicial review.

Background

2.The applicant is a national of Bangladesh.  He allegedly entered Hong Kong illegally on 2 July 2014, and was arrested by the police on the same date.  He lodged his claim for non-refoulement protection on 5 July 2014.  His claim was based on two sources of fear if he were to return to Bangladesh.  First, he claimed he would be harmed or even killed by members of Awami League because of his political affiliation with their rival the Bangladesh Nationalist Party.  Secondly, he also said he would be harmed by an extortionist because of his failure to pay money as demanded.   The facts of this case were summarized by the judge in [3] – [5] of her decision.

3.The Director of Immigration (“the Director”) assessed the applicant’s claim on all applicable grounds, and rejected it by two notices of decision dated 13 May 2016 and 30 June 2017.  The former covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3], and the latter the BOR 2 risk[4].

4.The applicant lodged an appeal/petition to the Board against the Director’s decision.  An oral hearing was held on 18 August 2017. The Board found no evidence of involvement of state officials or agents. Having considered the relevant country of origin information (“COI”), the Board found that state protection was available.  Furthermore, the Board found no evidence of state acquiescence, nor did it accept that the injuries suffered by the applicant attained the minimum level of severity.  Accordingly, the Board dismissed the applicant's appeal/petition on 8 September 2017.

The judge’s decision

5.On 28 September 2017, the applicant filed a Form 86 seeking leave to apply for judicial review against the Board’s decision.  In the Form 86, the applicant referred to his affirmation in support of the application for grounds for seeking relief.  In his affirmation, the applicant advanced the following grounds for the intended judicial review:

(1) The Board failed to carry out sufficient research and inquiry into the COI conditions and failed to have regard to relevant and up-to-date COI research;

(2) The Board cherry-picked COI and relied on outdated COI;

(3) The Board failed to evaluate and make a finding as to whether Bangladesh shows a consistent pattern of violation of human rights;

(4) The Board failed to analyse state protection in Bangladesh.  The Board misdirected itself on the law regarding the extended meaning of state protection;

(5) The Board took into account incorrect facts and failed to give weight to facts favorable to the applicant. No particulars were given for this ground;

(6) The Board failed to call for psychological and psychiatric evaluation when the claim was before the Director and the Board;

(7) The Board applied incorrect standard of proof.  There were no particulars for this ground;

(8) The duty lawyer failed at the first instance to give sufficient legal representation.  There were no particulars for this ground; and

(9) The Board failed to arrange an oral hearing for the applicant.

6.After holding an oral hearing on 2 March 2018, the judge refused to grant leave to the applicant to apply for judicial review.  The judge’s reasons in refusing leave were set out in [11] to [18] of her decision:

“ 11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to be without fault. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application. The ninth ground can be dealt with first and dismissed immediately; it submits the adjudicator failed to conduct an oral hearing to deal with the appeal when plainly the opposite is true.

12. There are eight other grounds in this affirmation and all contain no particulars. Grounds 5, 6, 7 and 8 contain no particulars. As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant. There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars. Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

13. In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up‑to-date Country of Origin (“COI”) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning. There are no particulars provided but in any event, the adjudicator did make reference to relevant and objective COI. These grounds are not arguable.

14. The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him. There was an interpreter present to assist if the applicant had asked for assistance. There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal. Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint. There is no merit in this ground.

15. The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. This ground is misleading when the adjudicator did not make any finding as to credibility; he assessed the applicant’s claim on the basis that he was telling the truth. There is no merit in this ground.

16. There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is misleading because the Director rejected it on 30 June 2017 and the date of the appeal hearing was 18 August 2017 with specific reference to that decision of the Director.

17. 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.

18. In my judgement and even if I am wrong not to grant an extension of time to file this application, 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

7.On 1 August 2018, the applicant filed a notice of appeal, together with his affirmation in support.  In the notice of appeal, the applicant referred to his affirmation for the grounds of appeal.

8.The applicant deposed in the affirmation as follows:

“ (1) The Honorable Deputy High Court Judge Madam WOODCOCK was wrong in law in holding that there was no state acquiescence or involvement.

(2) The Honorable Deputy High Court Judge Madam WOODCOCK failed to provide detailed reason in support of her decision.” (sic)

9.In Exhibit A to the affirmation, the applicant by and large repeated the grounds set out in his affirmation in support of the application for leave to apply for judicial review.  A new ground (ground 1) was added: that the Board misdirected itself on the law when assessing the risk of torture in the future. 

10.The applicant lodged his Skeleton Submissions on 7 November 2018.  He submitted that high standards of fairness were required in determination of a torture claim, that the Board should have approached the appeal by considering the applicant’s COI, and that the decision maker was under a common law duty to act fairly.

11.We heard the appeal on 18 December 2018.

General principles

12.Before we address the merits of the appeal, we would highlight the general propositions in respect of 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 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. 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) 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.

(4) 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.

(5) 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.

Discussion

13.In the present case, based on its evaluation of evidence, the Board rejected the applicant’s claim based on the lack of involvement of state agents, the availability of state protection, the absence of state acquiescence, and the lack of minimum level of severity on injuries suffered.  As stated above, evaluation of evidence is within the province of the Board.  After rigorous examination and anxious scrutiny of the materials, the judge did not find any fault in the decision of the Board.

14.In this appeal, the applicant did not put forth any viable ground to reverse the judge’s decision. The judge had given adequate reasons. Given the facts of this case and the findings of the Board, there is no basis for the applicant to rely on the concept of state acquiescence or involvement, whether active or passive: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

15.The complaint as to the misdirection of the Board in assessing risk in the future has no merit.  Apart from the absence of explanation for the applicant’s failure to canvass it in the Court of First Instance, the ground is not reasonably arguable. Having read the Board’s decision, in particular [41] to [57], we do not find any basis for arguing that the Board had misdirected itself in law. The threshold of minimum level of severity is a concept espoused by the Court of Final Appeal in Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at [172] to [176]. In the context of torture, it is an element in the definition in Section 37U of the Immigration Ordinance. The Board was entitled to conclude on the facts of this case that the applicant failed to meet such threshold for the reasons set out in the Board’s decision.  

16.The rest of Exhibit A simply regurgitates arguments which had been duly rejected by the judge without pinpointing how the judge can be said to be wrong.  As stated above, this course cannot avail the applicant on appeal.

17.Having considered the materials available before us, we cannot find any ground that justifies a reversal of the judge’s decision either.  We agree with the judge that leave to apply for judicial review should be refused.

18.For these reasons, we dismiss the appeal.

The applicant appearing in person