Re Bepari Manik

CACV 609/2018

[2019] HKCA 469

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 609 OF 2018

(ON APPEAL FROM HCAL 98/2018)

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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 Bruno Chan given on 20 December 2018 refusing the applicant 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 16 January 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 6 November 2015 and 3 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.The applicant is a national of Bangladesh.  He entered Hong Kong on 28 November 2012 illegally and was arrested by the police on the following day.  He lodged a non-refoulement claim on 1 December 2012.

3.The applicant’s claim was based on threats from members of 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 6 November 2015 (“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 3 July 2017 (“the Director’s Second Decision”), 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 12 December 2017, the Board dismissed the appeal on 16 January 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.  At [54] of the Board’s Decision, the Board found that the applicant’s case was not credible.

The deputy judge’s decision

7.The applicant filed a Form 86 on 22 January 2018 which contained the following grounds for seeking relief:

(1)   that the Board was in breach of procedural fairness in unlawfully fettering its discretion in refusing his appeal on the ground that they did not satisfy the requirement;

(2)   that the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

(3)   that the Board’s Decision to refuse his appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness;

(4)   that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)   that Board failed to make appropriate arrangements in relation to the hearing bundle;

(6)   that both the Director and the adjudicator misdirected on the law in failing to consider and assess his claim under Article 2, 3 of HKBOR and torture claim under CIDTP;

(7)   that the Director and the adjudicator failed to carry out sufficient research and inquiry to the relevant COI or relied on sources of news not officially recognized or was hearsay;

(8)   that the Director and the adjudicator failed to evaluate and make finding of facts as to whether there exists in Bangladesh consistent patterns of mass violation of human rights or the whether state protection exist in Bangladesh; and

(9)   that the Director and the adjudicator had cherry picked facts and failed to take into account or consideration of relevant COI in arriving at their decisions which were unreasonable.  

8.In the affirmation in support of the leave application dated 22 January 2018, the applicant repeated the grounds for judicial review in the Form 86.

9.The applicant was absent from the hearing and the rescheduled hearing.  The judge noted that the notice of hearing for the rescheduled hearing was sent by registered post to his new address but it was marked as “Unclaimed”.  The judge considered that the alleged non-receipt of the notice of hearing was merely an excuse by the applicant and decided to deal with the application on paper.

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 [13] to [20] of the CALL-1 Form:

“13. These are however all just broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in the decision, or in what way did they fetter their discretions or that their decisions were procedurally unfair or unreasonable, or how did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

14. The only other complaint which the applicant appeared to have made with any elaboration was about the arrangements of the hearing bundle being provided to him for his appeal hearing before the Board either being late and/or that the documents were in English without interpretation and thereby given him insufficient time to prepare for his appeal.

15. Even if it is true that the hearing bundle indeed came to him late as alleged, and the applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the applicant as they had earlier all being already made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the applicant in his appeal before the Board.

16. As for his complaint about the Director and the Board failing to make finding as to whether mass violation of human rights exists in Bangladesh, it has been held by the Court of Appeal that the mere existence of a consistent pattern of gross, flagrant or mass violation of human rights in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to torture or harm upon his return: see Re RS CACV 206/2012, 20 August 2013; and Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461. Given the nature of the alleged threats to the applicant, I do not find any basis in this complaint of his either.

17. The fact is that his claim was rejected by the Board on his credibility when the adjudicator had had the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 22 – 61 of his decision, to which he was in my judgment entitled based on the evidence available to him and in the absence of any errors being identified by the applicant, as has been repeatedly emphasized by the Court of Appeal that evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the Court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the Court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Nupur Mst [2018] HKCA 524.

18. Further, as it has also been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Bangladesh, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. In the premises and having proceeded to consider 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.

20. 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.”

Grounds for appeal

11.In the Notice of Appeal dated 31 December 2018 the applicant advanced the following broad grounds of appeal:

(1)   the judge was wrong to say that the applicant’s confusion was due more to his own memory and inability to answer questions properly than to problems with the hearing bundle, as the bundle was only partially interpreted to him at the hearing before the Board, and the applicant had no proper opportunity to consider it prior to the Board hearing; and

(2)   the applicant was unable to ascertain whether or not his evidence was being interpreted correctly, or recorded correctly, and the finding of lack of credibility on his part was likely due to problems with translation.

12.The applicant lodged skeleton submissions dated 18 March 2019 which were entitled CACV 383/2018 (rather than CACV 609/2018).  However, it appeared from the signature that these were the applicant’s submissions.  At the hearing, the submissions were shown and briefly interpreted to the applicant, who confirmed that they were his written submissions.

13.The skeleton submissions made reference to a Supplemental Notice of Appeal (although none was in fact filed).  They repeated the grounds for judicial review, and set out various findings said to have been made by the Board.  However, these differ from the terms of the Board’s Decision, and findings which the applicant says were made by the Board at particular paragraphs of its Decision do not appear in the paragraphs cited (or elsewhere in the Board’s Decision).  In these circumstances, we are unable to place reliance on the skeleton submissions.

14.The applicant agreed by a letter of 31 December 2018 that the appeal could be heard by two judges.  We heard the appeal on 17 April 2019.  At the appeal, the applicant made no further submissions, indicating that everything he wished to say was in his Notice of Appeal, hearing bundle and skeleton submissions.

Discussion

15.The applicant’s appeal is based on the Board’s assessment of his credibility, and complaints about the adequacy of the language assistance afforded to him.  Neither of these provide good grounds for appeal.

16.As the judge pointed out, the Board had rejected the applicant’s appeal based on a careful assessment of his credibility in the light of his answers to questions put to him by the Board at the appeal before it.  The judge correctly noted that an application for judicial review does not operate as a further appeal, and that the court will only interfere with the decision of the Director of the Board on public law grounds, none of which are made out here.  There is thus no merit in this ground.

17.As for the complaints regarding interpretation, these formed no part of the grounds for judicial review relied upon in the applicant in the court below, and accordingly are not grounds that can be relied upon on appeal.

18.There is therefore no merit in this appeal and we dismiss the appeal accordingly.

The applicant acting in person