Re Mizan Sikder

CACV 377/2018

[2019] HKCA 20

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 377 OF 2018

(ON APPEAL FROM HCAL 48/2018)

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

Date of Judgment:  11 January 2019

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J U D G M E N T

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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 Bruno Chan on 3 August 2018 refusing leave to the applicant to apply for judicial review. 

2.Due to the non-compliance with an unless order, the hearing for this appeal (originally listed for 18 December 2018) was vacated and this appeal is processed on paper based on the materials already lodged.

3.This is our judgment in the appeal.

Background

4.The applicant is a national of Bangladesh.  He entered Hong Kong on 2 November 2013 and was permitted to remain as a visitor until 9 November 2013.  He did not depart despite the expiry of his permission to remain, and overstayed illegally.  He surrendered to the Immigration Department on 12 November 2013 and lodged his claim for non-refoulement protection on 11 March 2014. 

5.The applicant’s claim was based on the fear that, if refouled, he would be harmed or killed by members of Awami League because of his past participation in the Bangladesh Islami Chatra.  The facts of this case were summarized by the judge in [2] – [4] of the CALL-1 Form (published as [2018] HKCFI 1593).

6.By two notices of decisions dated 5 February 2016 and 31 July 2017, the Director of Immigration assessed the applicant’s claim on all applicable grounds and determined it against the applicant.  The former decision covered the BOR 3 risk[1], the persecution risk[2] and the torture risk[3], and the latter the BOR 2 risk[4].

7.The applicant lodged an appeal/petition to the Board against the Director’s decisions.  The Board held an oral hearing on 12 September 2017. Having heard the applicant, the Board found that his evidence was wholly unreliable.  The Board took the view that the applicant was patently dishonest about the circumstances leading to his coming to Hong Kong.  The Board dismissed the applicant's appeal/petition accordingly.

The judge’s decision

8.The applicant filed his Form 86 on 9 January 2018, 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.

9.Three further grounds were submitted in the annexure:

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

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

(3)  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.

10.An oral hearing was held by the judge on 7 June 2018.  After hearing the applicant, the judge refused to grant leave to apply for judicial review.  The judge’s reasons refusing leave were set out in [11] – [16] of the CALL-1 Form as follows:

“ 11. These are however all just broad and vague assertions of the applicant without providing any particulars or specifics or elaborations as to how they applied to his case, or in what way that the Board had fettered its discretion or acted procedurally unfair or that its decision was unreasonable or irrational in the public law sense. There is simply no elaboration or explanation from the applicant in any of these complaints of his.

12. As for the only other complaint which the applicant did elaborate is about the hearing bundle being provided to him by the Director with the majority of documents in English just seven days before his appeal hearing before the Board hence giving him insufficient time to prepare or to find an interpreter to assist him and hence it is procedurally unfair to dismiss his appeal.

13. If it is indeed true that the hearing bundle was provided to him late for his appeal, and I note that he did not produce the letter from the Director which accompanied the bundle as proof, he should be well familiar with most of the documents such as his NCF, record of his screening interviews, and the Director’s decisions which had earlier already been provided to him when he still had legal representation, while he was able to present his appeal assisted by an interpreter to the Board without any difficulty during which he never raised any issue over the late provision of the hearing bundle or made any request for further time to prepare for his appeal. In the circumstances I do not find anything amiss arising from any provision of the hearing bundle to him in his appeal before the Board.

14. The fact is that the applicant’s claim was rejected by the Board essentially on his credibility, and as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the Adjudicator who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, I am unable to see any basis or merits for interfering with the Board’s decision.

15. 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.

16. 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.”

The appeal

11.On 8 August 2018, the applicant filed a notice of appeal.  The notice of appeal contained no ground of appeal. The applicant deposed in his affirmation in support dated 8 August 2018 that:

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

(2) The Honorable Deputy High Court Judge Bruno Chan failed to provide detailed reason in support of [his] decision.”

12.He produced an Exhibit A to the said affirmation in which he set out the following grounds directed against the Board:

(1)  The adjudicator misdirected himself that the applicant was required to experience torture in the past to establish substantial grounds for being subjected to torture in future;

(2)  The Board failed to carry out sufficient research and inquiry into the country of origin information (“COI”) and failed to have regard to relevant and up-to-date COI research;

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

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

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

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

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

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

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

General principles

13.Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for 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 or for running arguments which could and should have been raised but 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)  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.

(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.  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 rejected the applicant’s claim based on its adverse finding on the applicant’s credibility.  After having rigorous examination and anxious scrutiny of the materials available before him, the judge found no reasonably arguable basis to challenge the findings of the Board.

15.In this appeal, the applicant put forward two grounds to challenge the judge’s decision. None of them has any merit. The judge gave adequate reasons for his determination addressing the grounds raised by the applicant in support of his application before him. Given the facts of this case and the finding of the Board on the applicant’s credibility, there is no basis for the application of the concept of state acquiescence or involvement, whether active or passive, in the present case: see Re Esmerez Maria Nieva Gelito [2018] HKCA 611.

16.The applicant’s arguments set out in Exhibit A were directed at the Board’s decision.  Most of them (except those concerning the Board’s handling of the COI materials) had not been advanced before the judge. This Court does not see any ground for entertaining these new arguments when the applicant did not even explain why they were not canvassed at the Court of First Instance. 

17.In any event, the arguments in exhibit A lack merits. On many occasions in handling appeals of similar nature, we came across a document similar to Exhibit A being relied upon without any specific reference to requisite particulars on the facts of the case. Such general assertions cannot constitute valid ground for challenging the Board’s decision. 

18.Having considered the materials available before us, we agree with the judge that leave to apply for judicial review should be refused.

19.For these reasons, we dismiss the appeal.

The applicant acting in person